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What the Supreme Court’s “pass” means…

What the Supreme Court’s “pass” means…

The Supreme Court’s decision not to hear any of the Marriage Equality decisions of the lower courts will quickly add states who will now have full same-sex marriage rights.

(See the earlier Episcopal Cafe article for a map)


Many people are speculating what this decision not to decide (for now) means.

Eugene Robinson calls this “the tipping point” in The Washington Post:

This means that in three-fifths of the states plus the nation’s capital, gay marriage would be considered a constitutional right. I’d call that a tipping point.

The obvious historical touchstone is the court’s 1967 ruling in Loving v. Virginia, which struck down laws banning interracial marriage. At the time, large majorities throughout the South opposed legalizing marriage between blacks and whites. But only 16 states still had laws on the books banning unions that were sneeringly referred to as miscegenation.

It is hard for our children to believe that such bigoted laws ever existed. After today, it’s reasonable to expect that our grandchildren will be equally puzzled about laws against same-sex marriage.

The Economist, in “Gay marriage and the Supreme Court: Why did they take a pass?”: says that there was reason on both sides of the politics of the court:

Let’s start with the liberals. Denying the petitions makes good sense for them in both the short and long terms. The immediate benefit is nothing to pooh-pooh: a huge liberal victory in which millions more gay and lesbian Americans get the right to marry today. At the very least, marriage laws are opened up in new jurisdictions nine months before the Supreme Court would have a chance to rule next June.

But why wouldn’t the liberals jump at the chance to resolve the issue for the entire country once and for all? As I wrote a few weeks ago, Justice Ginsburg has criticised Roe v Wade for pushing the abortion issue “too far, too fast”, thereby provoking the backlash that continues to this day. (Witness the new tide of regulations, like the one in Texas, which have made it much more difficult for women seeking abortions to find clinics licensed to perform them.) A split Supreme Court ruling recognising a constitutional right to marry for gays and lesbians would surely be portrayed by opponents as the case of five liberal activist judges jamming homosexuality down the entire country’s throat. This perception would not serve the cause of gay rights in the short or medium term; indeed, it would embitter and embolden opponents, creating an atmosphere of intolerance in places where public opinion remains dead set against same-sex marriage. How much better to let the state legislatures and federal-appeals courts do that work piecemeal at a local and regional level, without the Supremes having to lift a pen. All this and the added benefit of creating “facts on the ground”—ie, married same-sex couples in dozens of states, which an eventual Supreme Court ruling on the constitutional question would be hard-pressed to ignore.

The Economist then refers to The Atlantic’s Garrett Epps’ article, “The Same-Sex Marriage Fight Is Over”:

The four dissenters in United States v. Windsor—the Defense of Marriage Act case—may have looked around the conference table last week and realized they would never get five votes to overturn the lower courts; that is, that Justice Anthony Kennedy was committed to taking his Windsor opinion to its fullest extent. Such an opinion might not only affirm same-sex marriage; it might hold, as some lower courts have held, that sexual orientation is a “heightened scrutiny” classification, like race or sex. All laws that discriminate against gays and lesbians would be in danger then. Chief Justice John Roberts and his allies may hope that every circuit will come to the same decision, so that gay marriage will become the law without a broad Kennedy opinion upholding the rights of gays in other areas.

Epps also articulates what has changed, and what it would take to change change:

So two things have changed as of 9:30 this morning, when the orders issued. First, there will soon be thousands of same-sex couples married by order of the courts. And second, the lower-court opinions, which said the Constitution provides a right for same-sex couples to marry, are now the law.

That sounds redundant, but it’s not. As long as cert. was pending, the lower-court opinions were in limbo. Meanwhile the issue is pending in the Fifth, Sixth, Ninth, and 11th Circuits. Any panel in one of those circuits must now confront a huge weight of federal authority affirming same-sex marriage. True, other circuits’ decisions are not “binding”; true, the Supreme Court did not give any hint of its position. But that’s still a lot of contrary authority to move against. Any judge writing an opinion that bars same-sex marriage must explain why he or she is ignoring all the previous decisions.

That still could happen. The press has speculated that the Sixth Circuit may soon issue an opinion allowing state bans to stand. The Fifth and 11th are among the most conservative of the circuits. If one of them breaks step, then the Court will have to take that case. And it would seem to most observers that it would be granting to reverse.

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