The Supreme Court just OK’ed, albeit circuitously, same-sex marriage nationwide

October 6, 2014

Supreme Court LGBTAt the very outset of its October 2014 term and with very little fanfare, the Supreme Court made one of the term’s biggest decisions: the definitive order on the validity of state same-sex marriage bans.

No, there wasn’t some grand opinion on constitutional rights released by the Court; the petitions for certiorari of the cases dealing with the issue were summarily denied, without explanation, by the Court in today’s order list.

What does this mean?  First, that I was wrong (it happens) when I wrote that “it seems all but certain” that the Supreme Court would review one or more of the rulings striking down a state same-sex marriage ban.  But I wasn’t the only one: according to the New York Times,

[t]he all but universal consensus from observers of the Supreme Court had been that the stays issued by the justices indicated that the justices wanted the last word before federal courts transformed the landscape for same-sex marriage.

The “stays” issued by the Court – the ones that prevented the federal rulings from originally going into effect – were the reason why I, too, believed that the Court was going to take up the issue.  But the summary denial of certiorari means that the stays are all lifted, and the rulings will now take effect – meaning, same-sex marriage will now be legal in five states: Indiana, Oklahoma, Utah, Virginia and Wisconsin.

Furthermore, because the order lifted the stays (and therefore finalized) rulings from three federal circuits, those rulings will now become binding precedent within those circuits.  This means that other states within those circuits that still have same-sex marriage bans – specifically, Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming – can expect swift legal action from challengers of their respective marriage bans.

But is it a certainty that courts within these circuits will once again rule in favor of striking down these states’ respective bans?  Nothing in life is certain, but it’s highly, highly likely that this will be the case, and here’s why: If all these courts had to rely on were earlier rulings within in their circuit on the invalidity of state same-sex marriage bans, it would be highly improbable they would go against these precedents.

However, we now have the Supreme Court’s implicit approval of these rulings.  After all, had the Court – even only four of the nine justices – believed that these rulings were reached in error, the Court would have taken up one or more of the cases.

Actually, the four conservative justices (Chief Justice Roberts, and Justices Scalia, Thomas, and Alito) likely didn’t agree (at least not fully) with the lower court rulings, but they were unlikely to risk a sweeping majority opinion granting expansive rights to same-sex couples by agreeing to review the issue.

So now the Court can act as though it played a minimal role in the advent of same-sex marriage across the country, even though it played a very central role in its growth.

Wondering how?

2013’s U.S. v. Windsor ruled that the federal Defense of Marriage Act’s Section 3, which prohibited the federal government from recognizing same-sex marriages legitimately solemnized by the states, to be unconstitutional.  There was somewhat of a federalism argument in Justice Anthony Kennedy’s majority opinion, in that the federal government doesn’t have the right to define marriage for the states, but the majority of the opinion was more focused on how Section 3 was a violation of the Equal Protection Clause.

Proponents of both sides of the issue tried to cite to Windsor as providing support for their own respective position, but when it came down to it, only one court in Tennessee found Windsor to allow states to prohibit same-sex marriage, while many, many others ruled just the opposite.

Now, with every since ruling that was seeking review by the Supreme Court being one that struck down a same-sex marriage ban, the Court’s outright refusal to review these rulings means that it has approved the lower courts’ interpretation of Windsor.

In short, the Court has cobbled together unequivocal precedent holding state same-sex marriage bans to be unconstitutional without ever explicitly stating as much.

How history remembers Windsor and today’s order remains to be seen, as does whether the Supreme Court may step in again on the issue further down the road if there happen to be some state bans holding out.

But, with these two pieces of Supreme Court precedent, it is now unmistakably inevitable that same-sex marriage will be lawful nationwide.