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A Surprise from the Court on Gay Marriage

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Honoré Daumier

The power not to decide is sometimes as important as the power to decide. To the surprise of virtually everyone, on Monday morning the Supreme Court denied review in all of the marriage equality cases pending before it. That leaves standing decisions from three federal appeals courts declaring that bans on same-sex marriage in Indiana, Oklahoma, Virginia, Utah, and Wisconsin are unconstitutional. As a result, same-sex marriages will now go forward in those states. Indeed, Virginia announced that it began recognizing same-sex marriages as of 1 PM Monday. In short order, six other states will follow—Colorado, Kansas, North Carolina, South Carolina , Wyoming, and West Virginia—because they are within the circuits governed by those same federal appellate courts. Final Supreme Court resolution of the issue will await another day—and in all likelihood, another year. But the decision not to intervene is a huge win for marriage equality.

It is also a prudent if unusual act of judicial statesmanship. The Court virtually always grants review where lower courts have declared a federal or state law unconstitutional, because judicial invalidation of a democratically enacted law thwarts the will of the people. That is why the Court granted review last year when the US Court of Appeals for the Ninth Circuit declared unconstitutional Proposition 8, a California ballot initiative that denied marriage to same-sex couples. (In that case, Hollingsworth v. Perry, the Court ultimately avoided a decision on the merits, concluding that because the state was not defending the validity of the law, the appeal was not properly before it.) And in all of the cases the Court ruled on Monday, the lawyers for both the states, who were appealing, and the plaintiffs, agreed that the Court should review the cases, in view of the importance of the issue. Yet the Court disagreed with them all, and chose, for now, to sit out.

Of course, the Supreme Court has absolute discretion to grant or deny review without explanation of the thousands of petitions presented to it. The Court grants review of less than one hundred appeals each year, and generally only in those cases where there is a conflict among the appellate courts that requires its resolution, or where the issues presented are of extraordinary significance. As yet, there is no “split” among the courts of appeals on marriage equality, and Justice Ruth Bader Ginsburg recently suggested that the Court need not take up the matter until there is. Last term, in United States v. Windsor, the Court invalidated a federal law that denied benefits to same-sex couples married in states that recognized same-sex marriage, and even though the Court was careful not to resolve the issue of state power to deny recognition to same-sex marriage, every court of appeals to address the issue since has declared unconstitutional states’ refusal to recognize same-sex couples’ right to marry on the same terms as opposite-sex couples.

Nevertheless, in the present case, five state laws had been declared unconstitutional, frustrating popular will in those states, and all parties agreed that the cases should be heard. So why did the Court stay its hand? It likely did so for much the same reason it avoided a decision on the merits in the Proposition 8 case last term. A dispositive ruling in favor of the challengers would likely have required every state in the union immediately to recognize marriage equality—at a time when the majority of states do not, and many states have affirmatively amended their state constitutions to underscore their antipathy to doing so. In the past, judicial decisions that have gotten too far out ahead of the populace have occasionally sparked a backlash, and the Court may well want to avoid that this time.

The direction the country is moving on marriage equality, however, is clear. Since last term’s decisions in the California Proposition 8 case and Windsor, eighty-one federal cases in thirty-two states have been filed challenging laws denying recognition of same-sex marriage. Forty-one decisions have ruled in favor of the challengers, while only two trial courts have gone the other way, and those cases are on appeal. Meanwhile, every time another poll is taken on the subject, popular support for marriage equality increases. The fact that gay and lesbian couples have been getting married in states across the country for about a decade, without any untoward effects on opposite-sex marriage, has demonstrated that the concerns of those who opposed marriage equality were unfounded. Allowing adults who love one another enter a committed relationship is a net gain for society, whether they are gay or straight.

The Court’s denial of review is a promising outcome for the cause of marriage equality not only because it expands same-sex marriage to five states. It’s also a sign of how the Court will ultimately rule on the issue. Had five justices felt that the lower courts were getting it wrong, they certainly would have granted review, and overturned those decisions. (It only takes four votes to grant review, but justices often are disinclined to grant review if they can’t see a fifth vote on their side.) The longer the Court waits to decide the matter, the more likely it will ultimately rule in favor of marriage equality. On evolving questions like this, the Court rarely issues decisions that contradict historical developments. And, as noted above, the more same-sex couples who marry, the weaker the arguments of those who insisted that the sky will fall if such marriages take place.

Monday’s decision means that the Court is unlikely to take up this issue until a federal court of appeals rules against marriage equality. That may never happen, in which case marriage equality will be won without the need for Supreme Court intervention at all. Court watchers think that a three-judge panel of the US Court of Appeals for the Sixth Circuit in Cincinnati, Ohio, may rule the other way, based on the panel’s questioning at oral argument in August in consolidated appeals from decisions striking down four states’ bans on gay marriage. But even if the panel declines to invalidate the state bans—parting company with all the other courts of appeals thus far—the case may not go to the Supreme Court. The challengers would very likely seek en banc review by all of the Sixth Circuit judges sitting together, and they might well agree with the other courts of appeals, and overturn the panel decision. In any event, that case is not likely to reach the Court until next year.

It is natural to want resolution of this issue at once—especially if one thinks the ultimate resolution will favor the freedom to marry. But patience, in this case, is a virtue. The road to the freedom to marry has been an incremental one, beginning in Hawaii in the mid-1990s, and proceeding state by state through Vermont, Massachusetts, California, Iowa, Connecticut, and many others. The Constitution is designed to evolve slowly, and compared to other constitutional developments, progress on the freedom to marry has been unusually swift. It will take at least another year or so, but its course now seems certain. The Court’s surprising decision not to interfere with this steady evolution means that progress will continue, as it most certainly should, without the need for a Supreme Court ruling. Sometimes the wisest course when one sees progress is simply to keep out of the way.