Supreme Court Denies States' Gay Marriage Appeal

The Supreme Court announced this morning that it would not hear appeals from states looking to reinstate same-sex marriage bans that have been overturned by federal courts.  The appeal denial decision was hinted at last month by Justice Ginsberg when she indicated that SCOTUS did not need to provide clarity on the constitutionality of gay marriage bans without a split on the issue amongst lower federal courts.

Supreme Court Denies Gay Marriage Appeals

With the question of gay marriage sweeping across the American judiciary, proponents and opponents have publically expressed hope that the Supreme Court will settle the matter once and for all by agreeing to hear one of the petitions before it this term.  After last year’s decision to strike portions of the federal Defense of Marriage Act (DoMA) in United States v Windsor opened the flood-gates on legal challenges to gay marriage bans, legal pundits felt the stars had aligned for the Supremes to revisit the question so deftly avoided in Windsor by granting one of the seven pending appeals.

Early in the business day on Monday, however, the Supreme Court quieted the debate over whether it was time for the Justices to settle the question over gay marriage with a resounding no.  In its customary order-without-explanation, SCOTUS denied each of the seven same-sex marriage appeals – effectively affirming the lower court decisions that found gay marriage bans to be unconstitutional.  The decision comes as somewhat of a surprise, particularly because the legal climate is ripe for a gay marriage ruling and both sides in all seven petitions requested that the Court take on the issue.

Competing Arguments in Gay Marriage Cases

States appealing lower court rulings which struck down same-sex marriage bans have consistently advanced a Federalist argument similar to the one that Justice Kennedy, unquestionably the swing-vote, used to form his majority opinion in Windsor.  States argue that gay marriage is an issue to be determined by state voters, and the federal court system has no authority to strike bans on same-sex unions.  Proponents of gay marriage argue that same-sex couples have a right to marriage that no state law can infringe upon, and thus far federal courts have unanimously agreed.

Despite the consistency across federal courts in gay marriage cases, Justice Kennedy’s Federalist reasoning in Windsor combined with the vigorous dissent of the Court’s Conservative Bloc provide reason to believe the Justices are not in agreement that gay marriage bans are unconstitutional. With uncertainty about the High Court’s stance on the issue, many legal experts felt that there was sufficient reason to take on at least one of the seven same-sex marriage cases, unanimity amongst the federal circuits notwithstanding.

Gay Marriage after SCOTUS Denial of Appeal

Although probably not the resounding victory they had hoped for, proponents of gay marriage won the day because SCOTUS’s decision upholds lower federal court rulings which hold that bans on same-sex unions are unconstitutional.  The primary effect on the Supreme Court’s ruling was to make gay marriage immediately legal in the five states where lower federal courts have overturned bans on same-sex unions: Virginia, Indiana, Wisconsin, Oklahoma, and Utah.  While SCOTUS pondered the pending appeals, the lower courts’ rulings on those states’ gay marriage bans were stayed, but with the Justices denying appeal those stays were lifted and gay couples could legally marry.

Secondarily, the Supreme Court’s ruling means that gay marriages can occur in six states where courts of appeals have struck down gay marriage in the federal district that controls them.  North Carolina, South Carolina, and West Virginia in the Fourth Federal Circuit and Colorado, Kansas, and Wyoming in the Tenth Circuit are now unable to enforce any law that prevents same-sex couples from getting married. Even if gay couples experience official resistance in those states, a simple request for a judicial order from a federal court will render any ban on same-sex unions ineffective.

With gay marriage directly or effectively legalized in 11 states after the Supreme Court’s decision, same-sex unions are now permissible in 30 states and the District of Columbia. The tide continues to favor gay marriage proponents, but there are a handful of pending challenges that could draw SCOTUS back into the discussion.

Pending Gay Marriage Cases Could Change Supreme Court Stance

Gay marriage remains debated in almost all of the twenty states where the issue is not yet settled by either a permissive law or a federal court of appeals ruling, and four legal challenges await decision from a federal circuit.  Cases in the Fifth, Sixth, Ninth, and Eleventh Circuits are pending decisions, and there is some reason to believe that the conservative Sixth Circuit could split from the pack and uphold a gay marriage ban – an outcome that would likely force SCOTUS to weigh in.  In the meantime, without a federal split on the constitutionality of gay marriage bans, the Supreme Court has made it clear that it is in no hurry to get involved.

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