The U.S. Supreme Court has now turned away appeals from five states looking to maintain their prohibitions against same-sex marriage, effectively legalizing gay marriages in those states and presumably some others but also leaving the issue unresolved nationally. As Fox News/AP report:
The justices rejected appeals from Indiana, Oklahoma, Utah, Virginia and Wisconsin. The court’s order immediately ends delays on gay marriage in those states. Couples in six other states—Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming—also should be able to get married in short order. Those states would be bound by the same appellate rulings that were put on hold pending the Supreme Court’s review. That would make same-sex marriage legal in 30 states and the District of Columbia.
As Justice Ginsburg signaled recently, it will likely take a split among the circuits before the Supreme Court decides to rule on whether any state can legally ban same-sex marriage. Otherwise, the issue will be allowed to proceed through the remaining circuits.
All in all, significant progress has been achieved and will continue to be made. And better no decision than a bad one. If and when one of the more conservative circuits, such as the 6th (Kentucky, Michigan, Ohio, Tennessee) or 5th (Louisiana, Mississippi, Texas), upholds state bans against marriage equality, the High Court will be forced, presumably, to weigh in. It’s widely believed that Justice Kennedy, always the swing vote between conservatives and liberals, would want to maintain his reputation at the leading judicial voice for equal rights as regards gay Americans. We’ll just have to wait a bit longer.
24 Comments for “Supreme Court’s Go-Slow Approach”
posted by Clayton on
Their refusal to hear the case–especially when they knew the end result of their refusal would be a lifting of all the stays currently in place–is a tacit acknowledgment that gays and lesbians to have a right to marry the partners of their choice. SCOTUS would be unlikely to refuse to hear the cases (and thereby allow thousands of more marriages to take place) if they knew they would ultimately vote against equality. Sure–there’s almost certainly three negative votes (Alito, Thomas, and Scalia) and at least four positive votes, with Kennedy a likely swing voter. It’s also possible that Roberts will surprise us–as he has before. Despite what the sixth circuit (or the equally conservative fifth circuit) will force a SCOTUS hearing, but I think that the more time passes, the more likely it is that equality will be all but official by the time the court hears a case.
posted by Tom Scharbach on
All in all, significant progress has been achieved and will continue to be made. And better no decision than a bad one. If and when one of the more conservative circuits upholds bans against marriage equality, the court will be forced (presumably) to weigh in, and it is widely believed that Justice Kennedy, always the swing vote between conservatives and liberals, would want to maintain his reputation at the leading judicial voice for equal rights as regards gay Americans. We’ll just have to wait a bit longer.
I think that marriage equality will be wrapped up by early Spring, except, perhaps, in the 5th Circuit (Louisiana, Mississippi and Texas).
Yesterday, marriage equality was a fact in 19 states plus the District of Columbia.
By denying cert this morning, the Court brought marriage equality to an additional five states (Indiana, Wisconsin, Utah, Oklahoma, and Virginia), although it may take a few days for the necessary mandates to be issued in those states.
Because the appellate level opinions are binding precedent in the Circuits involved (4th, 7th, 10th), the combination of today’s ruling and the appellate decisions have effectively brought marriage equality to an additional six states (Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming), again with the caution that may well take a month or two for the necessary orders to be issued.
As a result of the Court’s cert denial this morning, marriage equality will expand from 19 states to 24 states within days, and then to 30 states, almost certainly by Thanksgiving or shortly thereafter.
Decisions are expected soon in two additional Circuits — the 6th (Kentucky, Michigan, Ohio and Tennessee), and the 9th (Alaska, Arizona, Idaho, Montana, and Nevada).
The 9th Circuit, which previously ruled in favor of marriage equality in the Prop 8 case, is almost a dead certainty. The 9th’s decision will add five more states to the marriage equality list, bringing the total of equality states to 35.
The 6th Circuit is less certain to rule in favor of marriage equality than the 9th, because Judge Sutton appeared to be pondering Nelson v. Baker, as well as other possible reasons to rule against equality, at the oral arguments. We will know if a few weeks what Judge Sutton decides. If Judge Sutton follows the clear signal sent this morning by the Court, and joins a pro-equality decision, the 6th Circuit decision will add four more states to the marriage equality list, bringing the total of equality states to 49.
The leaves three Circuits (covering 11 non-equality states) outstanding at this point — the 5th (Louisiana, Mississippi, Texas), the 8th (Arkansas, Missouri, Nebraska, North Dakota and South Dakota) and the 11th (Alabama, Florida, Georgia). It is only a matter of time before those cases percolate through the appellate process to decision. The 11th Circuit is likely to act reasonably quickly and act favorably, the 8th Circuit and the 5th Circuit less quickly. But it is reasonable to assume that we will have decisions, one way or the other, by late Spring.
The question, of course, is whether any of the outstanding Circuits (5th, 6th, 8th, 9th or 11th) will throw a monkey wrench by deciding in favor a marriage discrimination.
The 5th Circuit, which is heavily weighted with conservative ideologues, could well throw the monkey wrench, but I would expect that today’s action by the Court would give the more rational among them pause.
The Court’s action today effectively legalized marriage equality in 11 additional states, bringing marriage equality to 30 states in which close to two-thirds of all Americans live. The Court would have to be deaf, dumb and blind not to be cognizant of the effect of the action, and aware that many thousands of gays and lesbians are going to marry in the states affected.
For whatever reason, the four Justices (Roberts, Alito, Scalia, Thomas) who objected vigorously to the reasoning in Windsor were neither formed a coalition needed to grant cert nor filed a dissent to the denial. That is a clear signal — as clear as a bell — that the battle is over.
posted by ctdawg on
“. . . the 6th Circuit decision will add four more states to the marriage equality list, bringing the total of equality states to *39*.”
But 49 would be nice.
posted by Jorge on
For whatever reason, the four Justices (Roberts, Alito, Scalia, Thomas) who objected vigorously to the reasoning in Windsor were neither formed a coalition needed to grant cert nor filed a dissent to the denial. That is a clear signal — as clear as a bell — that the battle is over.
Not the best place to end it. Nowhere near the worst.
posted by Tom Scharbach on
Colorado began issuing marriage licenses today. It is the first domino (that is, a state not directly affected by the Court’s decision this morning, but in a Circuit that is directly affected) to fall so far. Make that 25 states with marriage equality, not 24. I won’t be surprised to see a few others in the next week or two.
posted by Tom Jefferson 3rd on
I believe that Colorado was one of the States where, briefly, some clerk issued a gay marriage license back in the early 1970s.
posted by Shadow Chaser on
Maybe the the four circuits that have yet to rule on marriage equality just might rule in favor of marriage equality. What would happen? Would the the Supreme Court take a case on appeal from the one the circuits?
posted by Tom Scharbach on
Who knows? The Supreme Court’s decision to grant cert or not is discretionary, so I suppose that the Court could weigh in on a unanimous set of Circuit decisions.
But if all the Circuits rule that marriage discrimination is unconstitutional, then what purpose does a Supreme Court decision serve? No conflict between the Circuits would exist, so there would be nothing for the Court to settle by hearing the case and making a decision.
posted by tom Jefferson 3rd on
Feels like it’s time for a Peter seeger folk song……
posted by tom Jefferson 3rd on
The court could easily wait a few more years until they get involved again.
Since the 1950s the court has taken a gay rights case a decade,or so. The Lawrence and Winsor rulings were actually pretty close together within a historical context.
The court probably wants to see more lower court opinions and the like before it gets involved, a normal rule for just about any issue the court may choose to address.
However, they probably want the general population to come to terms with it, so that the nation will largely accept a future ruling, even if the complain about it.
posted by Doug on
IMHO it’s very likely that at least 1 of the remaining circuits will up hold the right to ban same sex marriage. That will give the Supreme Court an opening. If one of the less conservative justices leaves the Court and a conservative is appointed they could over rule all the other circuits and allow States to ban same sex marriage.
I don’t know if Robert’s has the guts to pull such a stunt bit I would put nothing past him.
I’m not saying this is very likely, I just don’t want to start dancing in the streets yet.
posted by Tom Scharbach on
I’m not saying this is very likely, I just don’t want to start dancing in the streets yet.
“Wait and hope” is probably the only strategy available to Alito/Roberts/Scalia/Thomas.
It is an ugly tradeoff for them — either (a) allow marriage equality to take root through the appellate courts now in hopes that Breyer/Ginsburg/Kennedy will die or retire in the last year of President Obama’s term, allowing the nomination to be blocked in hopes that a “traditional marriage” Republican like Ted Cruz or Rand Paul will win the White House in 2016, a conservative Justice will be appointed, and the lower court rulings overturned retroactively, or (b) take on the case now without any certainty at all that they could prevail, with the most likely result a national ruling not in their favor.
I don’t envy them the tradeoff.
Social conservatives in Wisconsin are clearly hoping for such a result. As our resident conservative Christian activist put it:
If Alito/Roberts/Scalia/Thomas can pull it off, God will be restored to His rightful place, kind of like the Restoration of 1660. Or maybe like the Cromwellian Revolution that preceded the Restoration of 1660. Who can say? I just hope that it won’t happen.
posted by Jim Michaud on
Retroactively? So if worse comes to worse and the GOP wins the White House, and puts in a Scalia clone at SCOTUS, all these marriages performed now will be null and void? It would throw the legal system in chaos. Hopefully, the GOP isn’t THAT nutty.
posted by Mike in Houston on
“Hopefully, the GOP isn’t THAT nutty.”
Look at the Hobby Lobby ruling again… they ARE that nutty.
posted by Tom Scharbach on
Retroactively?
If marriage discrimination laws/amendments are held constitutional, necessarily that means that the lower court federal rulings holding that marriage discrimination laws/amendments unconstitutional will be effectively reversed. It may take a second round of lawsuits to reinstate the laws/amendments, but the net effect will be retroactive reinstatement of the laws/amendments.
Hopefully, the GOP isn’t THAT nutty.
I hope not, but I would refer you to Ted Cruz’s statement of yesterday,
followed on by Reince Preibus’ statement on MSNBC yesterday in support of Cruz’s push for a constitutional amendment.
posted by Tom Scharbach on
The 9th Circuit, as expected, just ruled in favor of marriage equality. The Nevada case (which was heard pre-Windsor and ruled that Nevada’s ban was constitutional) was reversed and remanded back to the District Court for action in accordance with the 9th Circuit ruling, and the Idaho case affirmed.
It will take a while to work through the formalities (stays, appeals and so on), but unless the 9th Circuit opinion is appealed to the Supreme Court and overturned, the ruling will eventually add Alaska, Arizona, Idaho, Montana and Nevada to the marriage equality ledger.
posted by Tom Scharbach on
Dale Carpenter, who used to contribute to IGF, has an article on SCOTUSblog today titled “Judge Sutton’s trilemma” which is definitely worth a read. Carpenter analyzes the options open to Judge Sutton in the 6th Circuit (affirm, reverse, sit and wait), and the implications of each possible course of action.
posted by Aubrey Haltom on
Tom – I nominally direct this question to you due to your resume, but I’d appreciate anyone’s thoughts.
What do you make of Justice Kennedy’s just-issued stay for Idaho – Gov. Otter/Idaho had requested a stay of the 9th Court’s order. And Kennedy granted the stay.
And further appeals are coming from some of the southern states, if we believe the Republican officials making those claims.
posted by Aubrey Haltom on
Doesn’t a stay imply a possibility of success re: the appeal? That’s part of what confuses me.
And I don’t subscribe to the ‘let’s not treat this like abortion’ RBG line of thought. I don’t care how ‘methodically’ the states would have implemented a woman’s right to choose. The anti’s would have still opposed it with the same vehemence they do today.
This notion that if we ‘play nice’ and take our time then the opposition will jump on board doesn’t have much in the way of evidence behind it, does it? i.e., it’s not a scientific conclusion – where do we find validation for this theory?
I’ve lived in the South, and my in-laws are far-right fundamentalists (including young adults with very young children). These ‘relatives’ don’t recognize their own family member’s marriage, his child, not now nor at anytime in the past 25 years (we’ve been together for a long time).
And they won’t in the future, regardless a methodical approach or immediate ruling.
SCOTUS (non-)decision most definitely serves to negatively impact same sex families and individuals in those red states which either are still untouched by SCOTUS, or are fighting the non-decision. I don’t think you’ll find any significant inroads made with re: to the religious right.
posted by Tom Scharbach on
What do you make of Justice Kennedy’s just-issued stay for Idaho – Gov. Otter/Idaho had requested a stay of the 9th Court’s order. And Kennedy granted the stay.
Justice Kennedy is the emergency motions Justice for the 10th Circuit, so Idaho’s petition came to him.
Justice Kennedy issued a temporary stay , pending a response to Idaho’s petition for a permanent stay pending appeal to either the full 9th Circuit or to the Supreme Court. The response is due tomorrow at 5pm.
A temporary stay pending briefing is customary, so I don’t think that Justice Kennedy’s order means anything.
Justice Kennedy can decide whether or not to issue a permanent stay pending appeal on his own, or he can refer the question to the full Court.
If Justice Kennedy follows past practice in the marriage cases, he will issue a permanent stay pending appeal. If he does not, that is significant, because it signals that the appeal is unlikely to be granted cert in Justice Kennedy’s opinion. That will illuminate the denial decisions of Monday.
If he refers the matter to the full Court, and the full Court denies a permanent stay pending appeal, that will really be significant, because it will signal, very clearly, that the Alito/Roberts/Scalia/Thomas coalition does not have the votes. I think, at that point, that we can rest easier, pending death/incapacity/resignation of Breyer/Ginsberg/Kagan/Kennedy/Sotomayor.
We’ll just have to see what happens. But Justice Kennedy’s grant of a temporary stay signals nothing, as far as I can tell.
And further appeals are coming from some of the southern states, if we believe the Republican officials making those claims.
Well, sure. To keep the base intact, Republicans in socially conservative states have to fight to the last ditch. It is one thing for Governor Christie to throw in the towel in a bright “blue” state like New Jersey, but quite another to ask a Republican to throw in the towel in Kansas or South Carolina. Hell, even in Wisconsin, a “purple” state that has voted for the Democratic candidate for President in every election since 1984, Governor Walker and Attorney General Van Hollen fought the good fight until the bitter end.
I think that the real test will be whether any of the Southern Republican politicians start talking nullification when ordered to comply with a court’s order. I wouldn’t put it past Governor Perry in Texas, given the noises he’s made over the last few years.
posted by Jim Michaud on
Or what Gov. Brownback of Kansas is doing. There’s a limit as to how far these goons can go. This is all just political theater. Once a contempt of court order is issued and federal marshalls move in for arrest, they’ll back off. No government official wants charges of treason on their resume.
posted by Tom Scharbach on
Brownback and Walker are an interesting contrast. Both are in tight races for re-election, and can’t afford to alienate the base, but have to play to the general population, as well.
Walker took the tack of playing to the base by defending Wisconsin’s anti-marriage amendment to the last ditch, using Attorney General Van Hollen (who is not running for re-election) as the spear-chucker, meanwhile making “I’d rather talk about Jobs …” his campaign mantra and saying as little as possible about marriage inequality. When the last ditch was breached Monday, his response, as reported in this thread and in another thread, was to say “For us, it’s over in Wisconsin.” Again, he left it to Attorney General Van Hollen to flesh out the implications, lest he alienate the base. And note what he didn’t say: He didn’t say that the issue is over nationally (he has to keep an eye on the base for his presidential run) and he didn’t change his position in support of “traditional marriage” at all. He didn’t offer any affirmative statement about the numbers of gays and lesbians, and their families, who are now starting to get married again. All he did was throw in the towel after the towel was taken away from him, anyway.
That’s how it played out in a “purple” state.
In Kansas, as “red” as red can be, Governor Brownback is taking another tack altogether. He’s vowing to fight to the last ditch (although any sensible reading suggests that he’s about to fall into the last ditch) and making the absurd argument that no court has yet ruled on the precise language of the Kansas ban. So he’ll walk Kansas through the defense process in District Court, and then try an appeal, and he’ll cave only after the Circuit Court has shut him down.
That’s how it’s played in a “red” state.
The reason that Brownback can get away with it and Walker couldn’t is the difference in the general electorate. Wisconsin’s voters slightly favor marriage equality, and going too far too obviously would cost Walker votes. Kansas’s voters still favor marriage discrimination, so Brownback can fight on without significant penalty.
We’ll see a lot more of the political theater, I suspect. Politicians will play to the electorate. In Republican primaries, the electorate has a high percentage of social conservatives. In the general election, the percentage varies from state to state. Republican politicians in different states will play the game somewhat differently, depending on how they balance those two factors.
The one thing that I’m sure about is that Stephen is a damn fool if he thinks (as he suggests in the “Saving the GOP from Itself” thread) that the issue is going “off the table” this election cycle or next.
posted by Tom Jefferson 3rd on
Interestingly enough the folks that oppose the ‘activist’ judges imposing their policy preferences on the nation, tend town t get too upset with say, Bush v. Gore
posted by Tom Scharbach on
SCOTUSblog reports that Justice Kennedy lifted the stay on Nevada marriages a few minutes ago. The temporary stay on Idaho marriages remains intact until Justice Kennedy has reviewed Idaho’s petition and the response to the petition (due tomorrow at 5pm). Watch for an order lifting the stay in Idaho on Friday. That’s my guess, anyway.