Supreme Court Delivers Tacit Win to Gay Marriage
By ADAM LIPTAKOCT. 6, 2014
WASHINGTON — The Supreme Court on Monday let stand appeals court rulings allowing same-sex marriage in five states, a major surprise that could signal the inevitability of the right of same-sex marriage nationwide.
The development cleared the way for same-sex marriages in Indiana, Oklahoma, Utah, Virginia and Wisconsin. Gay and lesbian couples started getting married in those states within hours.
The decision to let the appeals court rulings stand, which came without explanation in a series of brief orders, will have an enormous practical effect and may indicate a point of no return for the Supreme Court.
Most immediately, the Supreme Court’s move increased the number of states allowing same-sex marriage to 24, along with the District of Columbia, up from 19. Within weeks legal ripples from the decision could expand same-sex marriage to 30 states.
That means nearly two-thirds of same-sex couples in the United States will soon live in states where they can marry, according to the Williams Institute at the University of California, Los Angeles, School of Law.
Protesters outside the Supreme Court. Opponents of same-sex marriage expressed frustration. Credit Alex Wong/Getty Images
Should the court then take up a same-sex marriage case next year or in another term, the justices may be reluctant to overturn what has become law in the majority of American states, said Walter E. Dellinger III, who was an acting United States solicitor general in the Clinton administration.
“The more liberal justices have been reluctant to press this issue to an up-or-down vote until more of the country experiences gay marriage,” Mr. Dellinger said. “Once a substantial part of the country has experienced gay marriage, then the court will be more willing to finish the job.”
There is precedent for such an approach: The court waited to strike down bans on interracial marriage until 1967, when the number of states allowing such unions had grown to 34, even though interracial marriage was still opposed by a significant majority of Americans. But popular opinion has moved much faster than the courts on same-sex marriage, with many Americans and large majorities of young people supporting it.
Opponents of same-sex marriage expressed frustration with the development. John C. Eastman, a law professor at Chapman University, said it was “beyond preposterous” for federal courts rather than the democratic process to define the meaning of marriage. Supporters of traditional marriage vowed to continue their fight, noting that several federal appeals courts are yet to be heard from.
Editorial: A Milestone for Same-Sex MarriageJUNE 27, 2014
“The court’s decision not to take up this issue now means that the marriage battle will continue,” said Byron Babione, a lawyer with Alliance Defending Freedom. “The people should decide this issue, not the courts.”
Monday’s orders specifically let stand decisions from three federal appeals courts striking down bans on same-sex marriage in Indiana, Oklahoma, Utah, Virginia and Wisconsin. Those three courts, which together have jurisdiction over six additional states that ban same-sex marriage — Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming — will almost certainly follow their own precedents to strike down those other bans as well. That would bring the number of states with same-sex marriage to 30.
Other appeals courts are likely to rule soon on yet other marriage bans, including the United States Court of Appeals for the Ninth Circuit in San Francisco, which has jurisdiction over nine states, five of which still have same-sex marriage bans. If that court rules in favor of same-sex marriage, as expected, it will be allowed in 35 states.
The justices had earlier acted to stop same-sex marriages in Utah and Virginia, issuing stays to block appeals court rulings allowing them. Other appeals court decisions had been stayed by the appeals courts themselves.
The nearly universal consensus from Supreme Court observers had been that the stays issued by the justices indicated that they wanted the last word before federal courts transformed the landscape for same-sex marriage. But in recent remarks, Justice Ruth Bader Ginsburg said there was no urgency for the court to act until a split emerged in the federal appeals courts, which recently have all ruled in favor of same-sex marriage.
Justice Ginsburg has often counseled moving slowly, a lesson she said she had learned from the backlash that followed Roe v. Wade, the 1973 decision that established a constitutional right to abortion. “It’s not that the judgment was wrong,” she has said, “but it moved too far, too fast.”
Proponents of same-sex marriage were confident they would have prevailed in the Supreme Court had it agreed to hear one of Monday’s cases. They took the unusual step of urging the justices to step in though they had won in the lower courts. Even as they welcomed Monday’s developments, some expressed frustration that the court had not acted more forcefully.
“The court’s delay in affirming the freedom to marry nationwide prolongs the patchwork of state-to-state discrimination and the harms and indignity that the denial of marriage still inflicts on too many couples in too many places,” said Evan Wolfson, the president of Freedom to Marry.
The justices last agreed to hear a constitutional challenge to a same-sex marriage ban, California’s Proposition 8, in December 2012. But a majority of the justices said in June 2013 that the case was not properly before the court. That move indicated that the Supreme Court wanted to stay out of the fray until more states allowed same-sex marriage.
If the court took pains to avoid a resolution of whether there was a constitutional right to same-sex marriage in the California case, Hollingsworth v. Perry, it set the groundwork for a definitive answer in a second decision issued the same day. That ruling, United States v. Windsor, struck down the part of the federal Defense of Marriage Act that barred federal benefits for same-sex couples married in states that allowed such unions.
The decision was based on a muddle of rationales. In his dissent, Justice Antonin Scalia challenged readers of Justice Anthony M. Kennedy’s majority opinion to follow its “disappearing trail” of “legalistic argle-bargle.”
But lower courts seemed to have no trouble understanding what the Windsor decision had to say about a constitutional right to same-sex marriage. In a remarkable and essentially unbroken line of about 40 decisions, state and federal courts have relied on Windsor to rule in favor of same-sex marriage.
In his own dissent in the Windsor case, Chief Justice John G. Roberts Jr. cautioned that the decision was a limited one, buttressing his assertion with a quotation from the majority opinion.
“The court does not have before it, and the logic of its opinion does not decide, the distinct question whether the states, in the exercise of their ‘historic and essential authority to define the marital relation,’ may continue to utilize the traditional definition of marriage,” he wrote.
“We may in the future have to resolve challenges to state marriage definitions affecting same-sex couples,” he added. “That issue, however, is not before us in this case.”
But lower-court judges seemed inclined to agree with Justice Scalia’s assessment of where things were heading.
“By formally declaring anyone opposed to same-sex marriage an enemy of human decency,” Justice Scalia wrote, “the majority arms well every challenger to a state law restricting marriage to its traditional definition.”