Supreme Court's Punt Gives Us Good Field Position

When the U.S. Supreme Court unexpectedly decided on October 6 not to take up several appeals of lower court rulings that struck down the existing bans on same-sex marriages, many believed the justices “punted.”  That is, less than four of the nine justices chose not to review these cases and will likely not be part of this term’s docket. 

Both sides had hoped for a sweeping decision by the Court to settle once and for all whether the right for same-sex couples to marry is protected by the U.S. Constitution.  Rather, by choosing to sidestep these cases they allowed the lower court rulings to stand.

To use football parlance, because the Supreme Court punted the hot button issue for a likely date sometime in the future, marriage equality advocates did not score a touchdown they were hoping for but instead found themselves in good field position.

By refusing to review cases from the Fourth Circuit, which covers Maryland, Virginia, West Virginia, North Carolina and South Carolina, same–sex marriages are no longer prevented from occurring. The Court also did not take on cases arising from the Seventh Circuit, which includes Illinois, Indiana and Wisconsin, and in the Tenth Circuit, which covers Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. 

And in the Ninth Circuit, marriage bans were struck down in Idaho and Nevada by a panel of judges the next day.  This ruling also applies to Arizona, Montana and Alaska.  Nuptials may be delayed in some of these states because of specific legal procedures, but eventually they will be allowed.  In all, the number of states permitting same-sex marriage would jump from 19 to 30 plus D.C. representing states with 60 percent of the U.S. population.  

Though the Supreme Court offered no explanation for their action, Justice Ruth Bader Ginsberg, who once officiated a same-sex wedding, indicated last month that for the justices there is “no need for us to rush” unless a split emerges in the various federal appeals courts and one of them decides to uphold a state ban on same-sex marriage.   

Had there been a split, the justices may have taken a look at it. That can happen in that the 6^th Circuit in Cincinnati is thought as one of the few that could uphold the bans.  Therefore, the Court put itself in a place where they would likely have to tackle the issue once and for all.

Evan Wolfson, the founder and president of the advocacy organization Freedom to Marry, said while the October 6 action provided “a bright green light” to same-sex marriage in more states, marriage equality advocates do want the Supreme Court to intervene and provide a definitive ruling covering all 50 states. “The Supreme Court should bring the country to a nationwide resolution,” Wolfson said. 

Those opposing marriage equality do as well and will continue to defend the bans in court (though stalling would appear advantageous to them if a Court vacancy is filled with a conservative).  They strongly believe that the people should decide the definition of marriage, not judges.

Opponents should note, however, that the people are not as against marriage equality as they think.  Ever since 2004 when the first same-sex weddings took place in Massachusetts—an occurrence that became a winning strategy for Republicans during the presidential campaign—support for marriage equality swung dramatically.  In fact, poll after poll indicate that a majority of Americans now support marriage equality.

During the 10 years since gay marriage was used as a political wedge issue, clear evidence of a transformation in attitudes began in 2012 with the startling first-time victories at the ballot box in three states that included Maryland.  Since then, legal challenges to a swath of state constitutions were launched claiming that the denial of same-sex couples to marry was in violation of the U.S. Constitution under the Equal Protection Clause.

As these cases meandered through the lower courts whereby one ruling after another found for the plaintiffs, federal appeal courts have upheld those rulings in a stunning wave of victories, adding great momentum to the movement.  The rationale  for these decisions had been bolstered in 2013 by the Supreme Court’s striking down key provisions in the Defense of Marriage Act. 

What was once a political weapon for Republicans nationwide, the changing attitudes towards same-sex marriage has pushed most Republicans to a hands-off approach.  This is consistent with their alleged attempts to demonstrate more acceptance towards gays and other minorities to improve their general election chances.   Indeed, a vast majority of Republicans remained silent following the recent Supreme Court announcement.

Senator Ted Cruz from Texas who many regard as an extremist, was one of the exceptions to have lashed out against the Court. “The Supreme Court’s decision to let rulings by lower court judges stand that redefine marriage is both tragic and indefensible,” he said.   He pledged to again introduce a constitutional amendment that defines marriage as a union of one man and one woman.  Good luck.

Reince Priebus, the chair of the Republican National Committee, in an effort to keep his job, threw a bone to his base by condemning the Supreme Court’s decision.  He said that if gays were allowed to marry, “America will ultimately collapse.”

As we have witnessed in the states where marriage equality is in place including Maryland, the sky has not fallen; society has not been destroyed; and the institution of marriage has not deteriorated.  Instead, children of same-sex couples are now protected, couples receive the same benefits, rights and responsibilities as their heterosexual counterparts; and the local economies have received a much needed boon.

As same-sex marriages continue to take place across the land, it will become increasing difficult to invalidate all those nuptials should that day eventually arrive when the ball lands in the Supreme Court justices’ hands.  Too much chaos would result.  Accordingly, we’re in a good position now to ultimately take it to the end zone.