Many more same-sex marriages soon, but where? (UPDATED)
on Oct 6, 2014 at 3:35 pm
UPDATE Monday afternoon. Within hours after the Supreme Court denied review in these cases, the Fourth Circuit put its ruling in the Virginia case into immediate effect (see here) and the Tenth Circuit did the same in its rulings in both the Oklahoma and Utah cases (see orders here and here). The Seventh Circuit has yet to act.
With not a single dependable hint of its own constitutional view of same-sex marriage, the Supreme Court in one fell swoop on Monday cleared the way for gays and lesbians to wed in a batch of new states — starting first in five more states, and probably adding six more in the coming weeks. If that happens in all eleven, it will mean that same-sex marriages would then be legal in thirty states and Washington, D.C.
In seven one-line orders, released without explanation and with no report on how any Justice voted, the Court surprisingly refused to review any same-sex marriage case now before it and, in the process, prepared to lift a series of orders that had delayed such marriages while the issue remained in the Court. Almost no one had expected that to happen.
It may take a few weeks for the Court’s action to take effect in real-world terms, in the geographic areas where federal appeals courts have struck down bans in five states — the decisions that the Justices have now left intact. Because those appeals court rulings are binding on all federal courts in their regions, those decisions almost certainly dictate the outcome in six more states.
Here is the lineup, as of Monday (this could change if other federal appeals courts issue rulings in coming days or weeks):
First, as a direct result of Monday’s action, same-sex marriages can occur when existing lower-court rulings against state bans go into effect in Virginia in the Fourth Circuit, Indiana and Wisconsin in the Seventh Circuit, and Oklahoma and Utah in the Tenth Circuit.
Second, such marriages can occur when the court of appeals rulings are implemented in federal district courts in three more states in the Fourth Circuit (North and South Carolina and West Virginia) and in three more states in the Tenth Circuit (Colorado, Kansas, and Wyoming). The other states in the three circuits where bans have been struck down had already permitted same-sex marriage, under new laws or court rulings (Illinois, Maryland, and New Mexico, which have been counted among the nineteen states in that category).
Third, four other circuits — the Fifth, Sixth, Ninth, and Eleventh — are currently considering the constitutionality of same-sex marriages. Of those, the Ninth Circuit — which had earlier struck down California’s famous “Proposition 8” ban and uses a very rigorous test of laws against gay equality — is considered most likely to strike down state bans. If that happens, it would add five more states to the marriages-allowed column (Alaska, Arizona, Idaho, Montana, and Nevada), which would bring the national total to thirty-five.
The reaction in those four circuits could depend upon how they interpret what the Supreme Court did on Monday.
If the Court is not likely to uphold any state ban, either on same-sex marriage in the first place or recognition of existing such marriage, lower courts may see good reason to fall in line. The Court’s actions, however, do not set any precedent, so lower courts are technically free to go ahead and decide as they otherwise would.
If they interpret the denials of review as providing no guidance whatsoever, then they would feel free to proceed without reading anything into what the Court has in mind.
It is very hard, however, to interpret the Justices’ actions as having no meaning. Here are the reasons why the denial orders were such a surprise:
First, for all seven petitions, both sides had urged the Court to grant review — a rare thing, and one that almost never fails to assure review.
Second, last year the Court had agreed to decide on the constitutionality of same-sex marriage, but wound up not deciding that issue because of a procedural defect in the appeal in that case (involving California’s “Proposition 8”). That was a sign that the Justices were prepared to confront the basic issue, at least at that time.
Third, during this year, the Court itself has three times blocked lower court rulings striking down state bans — an indication that the Justices did not want same-sex marriages to occur until they had weighed in on their constitutionality.
Fourth, the Court surely knew what the practical impact would be of turning aside all seven petitions — that is, the early implementation of same-sex marriages in a good many more states, without the Court ever having ruled on the core question and, in fact, with the Court having never said anything, one way or the other, on that basic issue.
Fifth, all of the new cases test the scope of the Court’s reasoning last year in striking down a key part of the federal Defense of Marriage Act. That decision, in the case of United States v. Windsor, did not deal with the core issue of same-sex marriage, but it ruled strongly in favor of equality in federal programs for same-sex couples who already were legally married under state law. In almost all of the nearly unanimous flow of lower court decisions since then striking down state bans, the judges have relied upon Windsor‘s rationale. By denying review Monday, the Court has not questioned that use of the Windsor decision.
Sixth, four Justices filed vigorous dissents in the Windsor case, and their votes would have been enough to grant review in any new case brought to it. If they, in fact, did vote to grant, that was not noted on the orders. Moreover, without some assurance of getting a fifth vote when the issue was actually decided, they may have decided to hold off, at least for the time being.
Whatever happens in the near term will have some confusion and a great deal of uncertainty, especially for same-sex couples who now go ahead and get married, but that would not compare to the confusion that would arise if the Court at some point in the future were to grant review of a case and uphold a ban on same-sex marriage. What would happen in the states where marriage had become available, and what would happen to those who married based on Monday’s actions and their aftermath?
Presumably, officials in states that wanted to reinstate bans could apply to reopen closed cases, based on the new authority that the Supreme Court, in such event, had provided. That might well be an invitation to legal chaos.