U.S. Supreme Court Allows Lower Courts’ Marriage Equality Decisions to Stand
The U.S. Supreme Court today declined to take up any of the various marriage equality cases previously decided by lower courts, essentially allowing their decisions to stand and ensuring marriage equality in an array of additional states.
The following series of five insightful articles is from SCOTUSblog, which provides premier commentary on the decisions and inner workings of the Supreme Court of the United States (SCOTUS).
SOURCE: SCOTUSblog (Oct. 6, 2014, 10:41 AM); Amy Howe, Today’s orders: Same-sex marriage petitions denied (UPDATED).
1) Today’s orders: Same-sex marriage petitions denied (UPDATED)
This morning the Court issued additional orders from its September 29 Conference. Most notably, the Court denied review of all seven of the petitions arising from challenges to state bans on same-sex marriage. This means that the lower-court decisions striking down bans in Indiana, Wisconsin, Utah, Oklahoma, and Virginia should go into effect shortly, clearing the way for same-sex marriages in those states and any other state with similar bans in those circuits. Indeed, Virginia Attorney General Mark Herring (who had declined to defend his state’s ban on same-sex marriage) indicated this morning on Twitter that, according to the U.S. Court of Appeals for the Fourth Circuit, the mandate in the Virginia cases would issue at 1 p.m., at which point “marriages can then begin.” In a statement (h/t The Indiana Law Blog), Indiana Attorney General Greg Zoeller (who had defended his state’s ban) indicated that, as a result of today’s orders, “the 7th Circuit now can issue a mandate in the [Indiana] case – essentially, an order that the 7th Circuit’s earlier ruling can take effect. Once a mandate is issued by the 7th Circuit – which could happen later this week – county clerk’s offices will be required by federal court order to issue marriage licenses to otherwise eligible same-sex applicants, and same-sex marriages previously granted by other states will be legally recognized in Indiana.” And just a few minutes ago, the U.S. Court of Appeals for the Tenth Circuit issued orders that lifted the stay of the mandate in the Utah and Oklahoma proceedings (h/t: Chris Geidner via Twitter).
The Supreme Court had issued the first round of orders from the September 29 Conference last Thursday, adding eleven new cases to its docket for the new Term. Many people had anticipated that one or more of the same-sex marriage petitions might be on that list, but the Court did not act on any of them at the time. Last month Justice Ruth Bader Ginsburg had suggested that the Court might not step into the controversy at this point, because there was no disagreement among the lower courts on that issue. Today her prediction proved true, with the Court denying review (without any comment) of the seven petitions: Bogan v. Baskin (Indiana); Walker v. Wolf (Wisconsin); Herbert v. Kitchen (Utah); McQuigg v. Bostic (Virginia); Rainey v. Bostic (Virginia); Schaefer v. Bostic(Virginia); and Smith v. Bishop (Oklahoma).
SOURCE: SCOTUSblog (Oct. 6, 2014, 12:48 PM); Suzanne Goldberg, Symposium: The Supreme Court’s opt out means more marriage equality but continuing harms to gay and lesbian couples
2) Symposium: The Supreme Court’s opt out means more marriage equality but continuing harms to gay and lesbian couples
Suzanne B. Goldberg is a professor at Columbia Law School.
Amazement mixed with anxiety and cautious optimism. That’s how I felt nearly twenty years ago when the U.S. Supreme Court granted cert. in Romer v. Evans, a case in which I was co-counsel for Lambda Legal.
In that moment, it was hard to be confident that the Justices would strike down Colorado’s ban on antidiscrimination protections for gay people, given Bowers v. Hardwick’s antigay moralizing, which upheld Georgia’s sodomy law in 1986 and remained the law of the land.
Even still, gay rights advocates reasonably feared that efforts to strip basic antidiscrimination protections from gay people would escalate if the Court did not step in to review Romer. Indeed, similar measures had been or were actively under consideration in more than a dozen states during that period.
Today’s wholesale refusal by the Court to address the marriage equality question takes place in a very different world. The cases are unquestionably urgent – especially to those who suffer daily injury and indignity in states where their marriages are treated as nonexistent.
But unlike twenty years ago, when there was legitimate concern that anti-gay laws might spread around the country, few serious observers would predict that today’s cert. denial will reverse the national trend – both in public opinion and in the courts – that profoundly favors marriage equality.
From that standpoint, one might say that no grave harm has been done by the Court’s decision to refuse review of marriage cases from the U.S. Courts of Appeals for the Fourth, Seventh, and Tenth Circuits. In fact, the Court’s cert. denials have significantly expanded the number of states in which same-sex couples can marry by allowing lower court rulings in favor of gay and lesbian couples to stand.
In keeping with those rulings, marriage should soon be authorized for same-sex couples not only in Indiana, Oklahoma, Utah, Virginia, and Wisconsin, whose cases were on appeal, but also in the other states covered by those circuits where marriage is not already in place: Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming. By some estimates, an additional fifty-one million Americans will live in states that will soon have marriage equality, bringing the total number of states to thirty in all.
As a result, by the time another marriage case reaches the high court, the balance will have tipped even more toward the inevitability of marriage equality for same-sex couples.
Still, with these genuinely positive consequences, there is another side to the cert. denial that leaves many observers somewhat stunned – not so much surprised by the Court’s decision as disheartened by it.
The denials are not surprising; the Court regularly denies review when there is no conflict among the circuits below. In the marriage cases, there is not only no conflict but also virtual unanimity among the forty-plus decisions by federal and state courts in marriage cases since June 2013, when the Court struck down the Defense of Marriage Act’s federal non-recognition provision in Windsor v. United States.
But however rational, an explanation for the Court’s cert. denial does not address the depressing result for many same-sex couples who had hoped for an end to the harms they suffer by being treated as legal strangers in their home states. And, of course, these harms are not limited to the couples themselves. In Windsor, Justice Kennedy famously invoked the harms – both financial and dignitary – to children whose parents cannot marry or have their marriages recognized.
In addition, governments and businesses now know that their constituents and employees will continue to suffer under the nation’s patchwork approach to marriage rights for the foreseeable future.
So, where to go from here? Back in the spring of 2013, even before Windsor was decided, TIME magazine had declared its view in a cover story: “Gay Marriage Won: The Supreme Court Hasn’t Made Up Its Mind But America Has.”
Eventually, another marriage equality case will reach the high court. There are, of course, no guarantees that the Justices will track public opinion – which shows that more than half of Americans support marriage rights for same-sex couples. Yet Windsor’s logic, which recognized that DOMA’s targeted denial of marriage rights caused real harms to gay and lesbian couples for no legitimate reason, gives every reason to think that the same majority will one day reject similar discrimination by states.
I continue to believe that the question is not whether the Court will recognize same-sex couples’ freedom to marry, but when. Today’s cert. denial leaves that question hanging longer than many anticipated, and brings no end to the suffering of same-sex couples who live in places where they are prevented from marrying or having their marriages recognized. But the cert. denial also means joy for those who live in the new “freedom to marry” states, and one more step forward for a nation that continues to work toward fulfilling its promise of equality for all.
3) Many more same-sex marriages soon, but where? (UPDATED)
UPDATE Monday afternoon. Within hours after the Supreme Court denied review in these cases, the Fourth Circuit put its ruling in the Virginia case into immediate effect (see here) and the Tenth Circuit did the same in its rulings in both the Oklahoma and Utah cases (see orders here and here). The Seventh Circuit has yet to act.
With not a single dependable hint of its own constitutional view of same-sex marriage, the Supreme Court in one fell swoop on Monday cleared the way for gays and lesbians to wed in a batch of new states — starting first in five more states, and probably adding six more in the coming weeks. If that happens in all eleven, it will mean that same-sex marriages would then be legal in thirty states and Washington, D.C.
In seven one-line orders, released without explanation and with no report on how any Justice voted, the Court surprisingly refused to review any same-sex marriage case now before it and, in the process, prepared to lift a series of orders that had delayed such marriages while the issue remained in the Court. Almost no one had expected that to happen.
It may take a few weeks for the Court’s action to take effect in real-world terms, in the geographic areas where federal appeals courts have struck down bans in five states — the decisions that the Justices have now left intact. Because those appeals court rulings are binding on all federal courts in their regions, those decisions almost certainly dictate the outcome in six more states.
Here is the lineup, as of Monday (this could change if other federal appeals courts issue rulings in coming days or weeks):
First, as a direct result of Monday’s action, same-sex marriages can occur when existing lower-court rulings against state bans go into effect in Virginia in the Fourth Circuit, Indiana and Wisconsin in the Seventh Circuit, and Oklahoma and Utah in the Tenth Circuit.
Second, such marriages can occur when the court of appeals rulings are implemented in federal district courts in three more states in the Fourth Circuit (North and South Carolina and West Virginia) and in three more states in the Tenth Circuit (Colorado, Kansas, and Wyoming). The other states in the three circuits where bans have been struck down had already permitted same-sex marriage, under new laws or court rulings (Illinois, Maryland, and New Mexico, which have been counted among the nineteen states in that category).
Third, four other circuits — the Fifth, Sixth, Ninth, and Eleventh — are currently considering the constitutionality of same-sex marriages. Of those, the Ninth Circuit — which had earlier struck down California’s famous “Proposition 8″ ban and uses a very rigorous test of laws against gay equality — is considered most likely to strike down state bans. If that happens, it would add five more states to the marriages-allowed column (Alaska, Arizona, Idaho, Montana, and Nevada), which would bring the national total to thirty-five.
The reaction in those four circuits could depend upon how they interpret what the Supreme Court did on Monday.
If the Court is not likely to uphold any state ban, either on same-sex marriage in the first place or recognition of existing such marriage, lower courts may see good reason to fall in line. The Court’s actions, however, do not set any precedent, so lower courts are technically free to go ahead and decide as they otherwise would.
If they interpret the denials of review as providing no guidance whatsoever, then they would feel free to proceed without reading anything into what the Court has in mind.
It is very hard, however, to interpret the Justices’ actions as having no meaning. Here are the reasons why the denial orders were such a surprise:
First, for all seven petitions, both sides had urged the Court to grant review — a rare thing, and one that almost never fails to assure review.
Second, last year the Court had agreed to decide on the constitutionality of same-sex marriage, but wound up not deciding that issue because of a procedural defect in the appeal in that case (involving California’s “Proposition 8″). That was a sign that the Justices were prepared to confront the basic issue, at least at that time.
Third, during this year, the Court itself has three times blocked lower court rulings striking down state bans — an indication that the Justices did not want same-sex marriages to occur until they had weighed in on their constitutionality.
Fourth, the Court surely knew what the practical impact would be of turning aside all seven petitions — that is, the early implementation of same-sex marriages in a good many more states, without the Court ever having ruled on the core question and, in fact, with the Court having never said anything, one way or the other, on that basic issue.
Fifth, all of the new cases test the scope of the Court’s reasoning last year in striking down a key part of the federal Defense of Marriage Act. That decision, in the case of United States v. Windsor, did not deal with the core issue of same-sex marriage, but it ruled strongly in favor of equality in federal programs for same-sex couples who already were legally married under state law. In almost all of the nearly unanimous flow of lower court decisions since then striking down state bans, the judges have relied upon Windsor‘s rationale. By denying review Monday, the Court has not questioned that use of the Windsor decision.
Sixth, four Justices filed vigorous dissents in the Windsor case, and their votes would have been enough to grant review in any new case brought to it. If they, in fact, did vote to grant, that was not noted on the orders. Moreover, without some assurance of getting a fifth vote when the issue was actually decided, they may have decided to hold off, at least for the time being.
Whatever happens in the near term will have some confusion and a great deal of uncertainty, especially for same-sex couples who now go ahead and get married, but that would not compare to the confusion that would arise if the Court at some point in the future were to grant review of a case and uphold a ban on same-sex marriage. What would happen in the states where marriage had become available, and what would happen to those who married based on Monday’s actions and their aftermath?
Presumably, officials in states that wanted to reinstate bans could apply to reopen closed cases, based on the new authority that the Supreme Court, in such event, had provided. That might well be an invitation to legal chaos.
SOURCE: SCOTUSblog (Oct. 6, 2014, 5:09 PM); Andrew Hamm, Afternoon round-up: Today’s orders in the same-sex marriage cases.
4) Afternoon round-up: Today’s orders in the same-sex marriage cases
This morning the Court issued additional orders from the Justices’ September 29 Conference, including orders in which it denied review of all seven petitions arising out of challenges to state bans on same-sex marriage. Writing for this blog, Amy Howe discusses the denied petitions, and Lyle Denniston reviews the consequences of those denials in the different states. Suzanne Goldbergweighed in on the significance of the denials as part of our symposium.
Other early coverage of the orders in the same-sex marriage cases comes from Pete Williams and Daniel Arkin at NBC News, Ariane de Vogue of ABC News, Mark Sherman at the Associated Press, Chris Geidner of BuzzFeed, Ashley Fantz and Bill Mears at CNN (also with an op-ed by Jeffrey Toobin), Dennis Romboy of Deseret News, Brian Dickerson of Detroit Free Press, Shannon Bream at Fox News, Benjamin Goad of The Hill, Allissa Wickham of Law360, David Savage of the Los Angeles Times, Kaveh Waddell at National Journal, Adam Liptak of The New York Times, Bill Chappell at NPR, Josh Gerstein at Politico, Lawrence Hurley at Reuters, Richard Wolf of USA Today, Brent Kendall of The Wall Street Journal, Robert Barnes of The Washington Post, Lisa Keen of the Keen News Service, and Greg Stohr of Bloomberg News.
Early commentary on today’s denials comes from Debra Cassens Weiss of the ABA Journal, Garrett Epps of The Atlantic, Ilya Shapiro at Cato at Liberty, the National Constitution Center staff at the Constitution Daily, Ruthann Robson at the Constitutional Law Prof Blog, Ryan Anderson at The Daily Signal, Nate Silver and Allison McCann at FiveThirtyEight, Alison Sacriponte at Jurist, George Zornick at The Nation, Amy Davidson at The New Yorker, Mark Joseph Stern at Slate (also here), Sahil Kapur at Talking Points Memo, Ian Millhiser at ThinkProgress, Jonathan H. Adler of The Volokh Conspiracy, German Lopez of Vox, Steve Klepper at the Maryland Appellate Blog, Ed Mannino at his eponymous blog, Rick Hasen at his Election Law Blog, and Noah Feldman for Bloomberg View.
Other coverage of today’s orders focused on a communications glitch at the Court that left reporters without thirty pages of today’s order list. The Associated Press covered the issue, as did Marcia Coyle at The National Law Journal, with commentary coming from Rick Hasen at his Election Law Blog.
5) First Monday surprise on same-sex marriage: In Plain English
In June 2013, in United States v. Windsor, a divided Supreme Court struck down Section 3 of the federal Defense of Marriage Act, which until then had defined “marriage” – for purposes of over a thousand federal laws and programs – as a union between a man and a woman. The Court’s five-to-four decision meant that same-sex couples who had been married in states where same-sex unions were permitted would have the same right as opposite-sex couples to, for example, file joint federal tax returns.
But on the same day, the Court sidestepped a ruling on whether the Constitution includes a right to marry someone of the same sex. Also by a vote of five to four, it ruled instead that supporters of California’s ban on same-sex marriage did not have a right to defend the ban on appeal when state officials had chosen not to do so. Within days, same-sex marriages resumed in California.
We all assumed that the issue would be back again at the Court before too long, and that expectation only increased as lower federal courts around the country started to rely on the Court’s decision in Windsor to strike down other states’ bans on same-sex marriage – in Utah, Virginia, Oklahoma, Indiana, and Wisconsin. All told, by last Monday the Court had before it seven different petitions asking the Court to weigh in on whether states can prohibit same-sex marriage. With all of the parties on both sides in all of the cases in agreement that the Supreme Court should take up the question, review seemed inevitable.
Until this morning at 9:30, when the Court turned down all seven of the petitions, without comment. It was an unusually chaotic scene in the Court’s press room even for a big announcement day. The Court reveals which cases it will or will not review in a document known as the “order list.” Today’s order list was particularly long: over eighty pages. The problem for reporters today was that over a third of those pages – roughly thirty pages – were missing from the hard copy that was distributed to them. And the electronic version of the order list, which might have filled in the gaps, was not yet available (or at least very difficult to find) on the Court’s newly revamped website. But eventually it became clear that the same-sex marriage petitions had been denied, and the analysis kicked in: why did the Court decide to turn down all seven petitions, and what does this mean going forward?
On the first question – why did the Court decide to deny review, when it had granted review in the Proposition 8 case less than two years ago? – all we can do is speculate. Although the Justices do sometimes write short opinions to explain why they are not reviewing a particular case (or why they think the Court should have reviewed the case), they don’t have to, and no one opted to do so today. A few weeks ago, Justice Ruth Bader Ginsburg had suggested that the Court might pass on the cases this time around because all of the federal appeals courts that have considered the issue so far have struck down state bans, eliminating any need for the Court to step in to resolve disagreements among the lower courts (a factor that the Court often considers in deciding whether to grant review). But that probably isn’t the whole story. After all, the Justices often take cases even though there is no division among the lower courts because at least four of them (the number needed to grant review) think that there is nonetheless an important issue at stake. (Bush v. Gore comes to mind here.)
Strategy may have also played a role in the decision to deny review. The Court’s four more liberal Justices – Ginsburg, Breyer, Sotomayor, and Kagan – may have been content to leave well enough alone, from their perspective. Put another way, they may have preferred to let the tide of decisions striking down state bans continue to flow steadily, rather than risk a broader decision which might turn back that tide altogether.
What is harder to imagine is why some of the Court’s more conservative Justices didn’t join forces to grant review. Indeed, it was nearly impossible to fathom that they would allow the lower-court decisions striking down state bans on same-sex marriage to go into effect without a fight, even if (as the conventional wisdom has surmised) they remained concerned about their ability to persuade Justice Anthony Kennedy to join them in upholding the bans. But apparently they did, and we may never know the full story until a Justice’s private papers are released, many years from now.
The second question – what happens next – requires less guesswork. The short answer is that same-sex marriage will be legal in the five states whose bans were at issue before the Court. Things are already moving quickly. In Indiana, county clerks began issuing marriage licenses to same-sex couples this afternoon, and same-sex marriage ceremonies started in Virginia just after 1 p.m. today.
But today’s orders will have a broader impact as well. Specifically, because the Court let stand the lower court decisions striking down the five bans, those decisions and their reasoning become the law of the land for other states whose federal appeals are heard by the U.S. Courts of Appeals for the Fourth (Virginia), Seventh (Indiana and Wisconsin), and Tenth (Utah and Oklahoma) Circuits. This means that, although they were not directly before the Court, bans in North Carolina, South Carolina, West Virginia, Colorado, Kansas, and Wyoming are also effectively dead. That would bring the number of states where same-sex marriages are legal to thirty.
To be sure, there are four other federal appeals courts that are currently considering challenges to state bans on same-sex marriage. A ruling by at least one of them that states can prohibit same-sex marriage would create the kind of disagreement among the lower courts that might spur the Court to grant review. But meanwhile thousands of same-sex marriages are likely to take place in the states where it is now permitted, and public support for those marriages will probably continue to grow. So even if at some later point in time there are four Justices willing to take on the same-sex marriage question, it may be too late to put the genie back in the bottle. Time will tell.