— In a move that may
signal the inevitability of a nationwide
right to same-sex marriage, the
Supreme Court on Monday let stand
appeals court rulings allowing such
unions in five states.
The development, a major surprise,
cleared the way for same-sex marriages
in Indiana, Oklahoma, Utah, Virginia
and Wisconsin. Officials in Virginia
announced that marriages would start
at 1 p.m. on Monday.
The decision to let the appeals court
rulings stand, which came without
explanation in a series of brief orders,
will almost immediately increase the
number of states allowing same-sex
marriage from 19 to 24, along with the
District of Columbia. The impact of the
move will in short order be even
broader.
Monday's orders let stand decisions
from three federal appeals courts with
jurisdiction over six other states that
ban same-sex marriage: Colorado,
Kansas, North Carolina, South Carolina,
West Virginia and Wyoming. Those
appeals courts will almost certainly
follow their own precedents to strike
down those additional bans as well,
meaning the number of states with
same-sex marriage should soon climb
to 30.
There may then be no turning back,
said Walter E. Dellinger III, who was an
acting United States solicitor general in
the Clinton administration.
"The more liberal justices have been
reluctant to press this issue to an up-
or-down vote until more of the country
experiences gay marriage," he said.
"Once a substantial part of the country
has experienced gay marriage, then the
court will be more willing to finish the
job."
There is precedent for such an
approach. The court waited until 1967,
for instance, to strike down bans on
interracial marriage, when the number
of states allowing such unions had
grown to 34, though it was still
opposed by a significant majority of
Americans.
Popular opinion has moved much
faster than the courts on same-sex
marriage, however, with many
Americans and large majorities of
young people supporting it.
Other appeals courts are likely to rule
soon on yet other marriage bans,
including the United States Court of
Appeals for the Ninth Circuit, in San
Francisco. That court has jurisdiction
over nine states. If it rules in favor of
same-sex marriage, as expected, it is
unlikely to enter a stay, and, given
Monday's developments at the
Supreme Court, there is no particular
reason to think the justices will.
Defenders of traditional marriage
vowed to continue their fight, noting
that several federal appeals courts are
yet to be heard from. "The court's
decision not to take up this issue now
means that the marriage battle will
continue," said Byron Babione, a lawyer
with Alliance Defending Freedom. "The
people should decide this issue, not the
courts."
Sooner or later, an appeals court may
uphold a state ban, and the Supreme
Court may then feel required to step in.
But it may find it difficult to tell
thousands of newly married same-sex
couples that their marriages are
invalid.
The justices had earlier acted to stop
same-sex marriages in Utah and
Virginia, issuing stays to block appeals
court rulings allowing them. Other
appeals court decisions had been
stayed by the appeals courts
themselves.
The 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. But in recent
remarks, Justice Ruth Bader Ginsburg
said there was no urgency for the court
to act until a split emerged in the
federal appeals courts, all of whose
recent decisions have been in favor of
same-sex marriage.
She has often counseled moving slowly,
a lesson she said she learned from the
backlash that followed Roe v. Wade,
the 1973 decision that established a
constitutional right to abortion. "It's
not that the judgment was wrong," she
has said, "but it moved too far, too
fast."
The justices last agreed to hear a
constitutional challenge to a same-sex
marriage ban, California's Proposition
8, in December 2012. But a majority of
the justices said in June 2013 that the
case was not properly before the court.
That move indicated that the Supreme
Court may have wanted to stay out of
the fray until the number of states
allowing same-sex marriage was much
higher.
If the court took pains to avoid a
resolution of whether there was a
constitutional right to same-sex
marriage in the California case,
Hollingsworth v. Perry, it set the
groundwork for a definitive answer in
a second decision issued the same day.
That ruling, United States v. Windsor,
struck down the part of the federal
Defense of Marriage Act that barred
federal benefits for same-sex couples
married in states that allowed such
unions.
The decision was based on a muddle of
rationales. In dissent, Justice Antonin
Scalia challenged readers of Justice
Anthony M. Kennedy's majority
opinion to follow its "disappearing
trail" of "legalistic argle-bargle."
But lower courts seemed to have no
trouble understanding what the
Windsor decision had to say about a
constitutional right to same-sex
marriage. In a remarkable and
essentially unbroken line of about 40
decisions, state and federal courts have
relied on Windsor to rule in favor of
same-sex marriage.
In his own dissent in the Windsor case,
Chief Justice John G. Roberts Jr.
cautioned that the decision was a
limited one, buttressing his assertion
with a quotation from the majority
opinion.
"The court does not have before it, and
the logic of its opinion does not decide
the distinct question whether the
states, in the exercise of their 'historic
and essential authority to define the
marital relation,' may continue to
utilize the traditional definition of
marriage," he wrote.
"We may in the future have to resolve
challenges to state marriage definitions
affecting same-sex couples," he added.
"That issue, however, is not before us
in this case."
But lower-court judges seemed inclined
to agree with Justice Scalia's
assessment of where things were
heading.
"By formally declaring anyone opposed
to same-sex marriage an enemy of
human decency," Justice Scalia wrote,
"the majority arms well every
challenger to a state law restricting
marriage to its traditional definition
No comments:
Post a Comment