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 6th 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.
