The Supreme Court has declined to take up same-sex marriage appeals from five states, a decision that should usher in legal gay marriage to a majority of states.
The development comes after many lower and appeals courts have ruled against states’ bans on gay marriage, including in the five states in question: Indiana, Utah, Oklahoma, Virginia and Wisconsin.
Today’s news comes either as a surprise or a disappointment to advocates on both sides of the issue who’d been hoping the justices might review a same-sex marriage case during the court’s new term in order to add more legal clarity to a contentious issue. With roughly half the states having legalized same-sex marriage and half the states not doing so, shouldn’t the Supreme Court finally get involved?
Perhaps they did, according to Hastings College of the Law professor Rory Little, who has worked for five Supreme Court justices. Rather than rule directly on the merits of same-sex marriage arguments, the Justices, instead, are operating on what the late Alexander Bickel called “The Passive Virtues.” Bickel, a Yale law professor, wrote a famous article in legal circles about the passive virtue of the Supreme Court, the ability of the Court to signal a strong affirmation of evolving societal views simply by denying review.
It’s sort of opposite the path taken in Brown v. Board of Education, Little explained to KCBS News in San Francisco. Once the Court decided that schools must be desegregated, they then denied review of numerous cases where states insisted on maintaining segregation.
Ruth Bader Ginsburg told the Associated Press last month that the court was in “no hurry” to address same sex marriage unless there was a split in the lower courts. That split has yet to materialize.
“If you count all the states that may be covered by the rulings of the five states whose appeals were rejected – by implication, not directly – there are only about 13 states left that are actually opposed to same-sex marriage,” Little said.
How does Professor Little arrive at that figure? If a federal circuit court issues a ruling, which it has in several of the cases the Supreme Court declined to hear today, it applies to all of the states and courts within that circuit. Typically, a circuit covers four, five or six states. Normally, a ruling from that circuit governs all of the jurisdictions within the circuit. There are ways that states can wiggle to avoid that implication if they’re so inclined, but circuit rulings are binding ones for all the states that circuit covers.
Is there a gay marriage appeal of any sort the Court might be willing to take up? If may depend on how adamantly any state still opposed to gay marriage wants to continue denying their own citizens the right to marry, or refusing to recognize marriages from other states. Perhaps if some state Supreme Court ruling affirms that opposition, a challenge might go forward. There are no such cases on the horizon, though it seems likely someone will try to present a test case in an attempt to get a definitive ruling from the U.S. Supreme Court.
In a news release, Human Rights Campaign said the decision was “joyous” for thousands of couples across the marriage, but said it did want the issue to eventually be decided nationally.
“Let let me be clear,” said Human Rights Campaign President Chad Griffin. “The complex and discriminatory patchwork of marriage laws that was prolonged today by the Supreme Court is unsustainable. The only acceptable solution is nationwide marriage equality and we recommit to ourselves to securing that.”
The Court’s refusal today to hear all five petitions means that the appeals courts’ decisions allowing gay marriage can now take effect. They had been on hold pending a potential review by the Supreme Court. In Indiana, county clerks may start issuing marriage licenses to gay couples as early as today after attorneys review this morning’s Supreme Court decision.