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Symposium: The Supreme Court’s deliberation-forcing move in the marriage equality cases (UPDATED: 5:30)

 William N. Eskridge Jr. is the John A. Garver Professor of Jurisprudence at Yale Law School.

[This post has been updated to reflect the Ninth Circuit’s ruling today.]

Virtually no one anticipated the Supreme Court’s dismissal of the petitions for review of decisions invalidating marriage exclusions for lesbian and gay couples in Indiana, Oklahoma, Utah, Virginia, and Wisconsin.

The Court’s action yesterday gives a strong boost to the marriage equality movement, partly because it will force more public deliberation about this issue all over the United States. As a long-time supporter of marriage equality, I am confident that the more the matter is publicly deliberated, and the more lesbian and gay couples are able to “come out” as married, the greater will be the support for marriage equality in the nation as a whole.

Specifically, there will be public deliberation not only by lower-court judges in states still excluding lesbian and gay couples, but also by state officials, by religious and other groups who have traditionally taken public positions, by leaders of the Republican Party, and by private citizens. The Supreme Court’s action puts everyone on the spot: Do you have a good reason to exclude these committed couples, many raising children, from civil marriage?

Here is the run-down, step by step, for the process we shall see in the upcoming months.

Because their petitions for review were rejected by the Court, Indiana, Oklahoma, Utah, Virginia, and Wisconsin immediately have to start issuing marriage licenses to these couples. This is an important development. Now, marriage equality is the law in twenty-four states (and the District of Columbia), roughly half the country. And four of these new equality jurisdictions are among the most conservative, and traditionally anti-gay, in the country.

This is also an important moment for public deliberation in each of these states. How are officials and the public going to respond? The Utah and Virginia governors set a good example for all the states, when they have insisted that marriage license officials immediately recognize lesbian and gay unions. Marriage licenses were issued in these states right after the Court’s decision.

The media effects of this development are important, as traditionalist citizens will have new opportunities to see the human faces of marriage equality – happy spouses and parents devoted to the same values that straight couples seek and celebrate. It will also be important that the negative effects imagined by critics of marriage equality will not materialize.   Traditional married couples will not be demoralized by gay marriage, as the Defense of Marriage Act suggested, nor will straight couples be scared away from marriage, as recent opponents of marriage equality have suggested.

Moreover, the Court’s action leaves in place precedents requiring heightened scrutiny for lesbian and gay exclusions in the Fourth, Seventh, and Tenth Circuits. Those precedents are binding on district courts throughout those circuits. In short order, marriage equality plaintiffs and supporters will prevail in North Carolina, South Carolina, West Virginia (all Fourth Circuit), as well as Colorado, Kansas, and Wyoming (Tenth Circuit).

In each of those six additional states, public officials will have to decide whether they want to oppose immediate recognition of marriage equality, what arguments to make if they do so, and whether to appeal if they do not prevail in court. Those officials will know that history as well as the media will judge them and that certain arguments will expose them and their states to ridicule. Governors in four of those six states are running for reelection this year, so what they say has special significance.   Some officials may endorse equal treatment, as the governor and the attorney general of Virginia did in one of the cases rejected by the Supreme Court. Apparently, the Colorado Attorney General has already instructed officials to start issuing marriage licenses in that state. Other officials will probably follow Colorado’s example.

In the near future, there should be thirty-five states with full marriage equality: the nineteen states recognizing marriage equality before October 6, plus eleven more from the Fourth, Seventh, and Tenth Circuits, as well as five states in the Ninth Circuit, which struck down the marriage exclusions in Idaho and Nevada today.

There will be as many as thirty-five marriage equality states very soon – even if the Fifth and Sixth Circuits reject marriage equality claims in pending appeals. For example, if the Sixth Circuit were to uphold Michigan’s exclusion of lesbian and gay unions from civil marriage, the Supreme Court would very probably take the Michigan marriage equality case (or another case from the Sixth Circuit, where several are pending). That would be more good news for the marriage equality movement, because the Michigan case comes loaded with detailed findings of fact not only documenting the value of lesbian and gay families, but also soundly refuting stereotype-laced arguments supporting their exclusion.

Imagine this scenario. The Sixth Circuit upholds Michigan’s (or another state’s) exclusion in the next several months, and the Supreme Court takes review.   During the briefing process, one state after another recognizes marriage equality – often through a deliberative process where elected officials support or acquiesce in lower court judgments requiring marriage equality for lesbian and gay couples.   Amicus briefs fall into line behind marriage equality, with support from businesses, many religious groups, public officials from both parties and from most of the states.

As tens of thousands new marriage licenses are issued to lesbian and gay couples all over the country, it strikes me as highly unlikely that the Supreme Court would affirm Michigan’s pervasive discrimination against committed lesbian and gay couples and their families. More important, perhaps, is the process by which marriage equality has unfolded. It would be significant and legitimacy-enhancing that each state would have had an opportunity to deliberate about the issue and learn from the experience of other states.

This deliberation-forcing strategy recalls the Obama administration’s announcement in February 2011, that it would no longer defend the Defense of Marriage Act (DOMA) but would continue to apply it. That approach opened the door to open debate, on the merits, of excluding lesbian and gay families from family law.   Was there a public-regarding reason why married lesbian and gay couples, many raising children, should not receive the same social security benefits as married straight couples? Why the same conflict-of-interest rules should not apply to lesbian and gay married couples?

The American public and the media could see that congressional defenders of DOMA never satisfactorily answered these questions. Hundreds of married lesbian and gay couples challenged the discrimination against them, and judges all around the country issued rulings criticizing or rejecting DOMA’s discriminatory regime. This ongoing, thoughtful process contributed not only to the Supreme Court’s 2013 decision striking down Section 3 of DOMA in United States v. Windsor, but also to the country’s ready acceptance of the Court’s judgment.

In my view, the Obama administration’s actions in 2011-2012 were the “Cinderella moment” for marriage equality in the United States. Today’s action by the Supreme Court brings Cinderella’s wedding to her Princess Charming much closer to consummation, after a deliberative process where supporters of marriage exclusions will have a final opportunity to make their case.

Recommended Citation: William Eskridge, Symposium: The Supreme Court’s deliberation-forcing move in the marriage equality cases (UPDATED: 5:30), SCOTUSblog (Oct. 7, 2014, 2:16 PM),