Marriage equality took one of its biggest leaps forward today without anything happening at all. By deciding not to hear any of the same-sex marriage cases appealed to it, the Supreme Court immediately voided bans on gay marriage in five more states — Utah, Oklahoma, Virginia, Indiana and Wisconsin — and likely did so in six others that are part of the same appellate circuits. It was the largest number of states to realize marriage equality on one day, topping the three (including Maryland) that voted it into effect by referendum in 2012. Assuming the decisions hold throughout the circuits in which they were decided, gay marriage will for the first time be legal in the majority of states covering the majority of Americans — 30 plus the District of Columbia, covering 60 percent of the population, up from 19 states and 43 percent when the sun rose this morning.
Supreme Court tea-leaf-readers are puzzling over what this means. It only takes four votes on the court to take up a case, and there are thought to be four justices solidly on either side of the marriage equality question, with Justice Anthony Kennedy presumed to be the swing vote. Given that in all of the cases the court declined to hear, both the proponents and opponents of gay marriage had asked the Supreme Court to hear the appeal — an unusual circumstance in itself — it's hard to know what it means that the court declined. Justice Ruth Bader Ginsburg recently made remarks suggesting that the court would wait for a case showing a split among federal appellate courts — so far, since last summer's decision overturning the Defense of Marriage Act, all of them have ruled that gay marriage bans violate the Constitution.
Justice Ginsburg suggested that a case out of Ohio may well be the one, and analysts have pointed to one justice in the Cincinnati-based 6th Circuit as telegraphing some reluctance to rule the same way has his peers elsewhere. Arguments on the issue were held in August, and a ruling is expected soon. The court could theoretically still take up an appeal of that decision this term, but the window is rapidly closing.
Even if an adverse ruling from that or some other circuit is appealed to the Supreme Court, then what? Justice Kennedy's opinion in the Defense of Marriage Act case has been the catalyst for an all-but-unanimous string of federal and state court rulings striking down gay marriage bans. If he felt his opinion was being misinterpreted, he certainly could have tipped the scales for the court to take up one of the cases that was before it. Although his ruling in the DOMA case, United States v. Windsor, pointedly stopped short of addressing the question of whether gays have a constitutional right to marry, Justice Kennedy recognized it as a matter of "dignity and status of immense import" that touched on the "equal liberty of persons." He also recognized the grievous harm gay couples and their children suffer because of the unequal recognition of their unions.
As a result of what the court did today, the specter of those harms will only be magnified when and if a marriage equality case ever does land on its docket. The way is now paved for same-sex marriages to proceed in another 11 states, with more seen as likely on the way as at least one equality-minded appeals court renders a decision in the months ahead. It will be another nine months at best and likely much longer before the Supreme Court will be able to render a verdict on the issue. In that time, the institution of same-sex marriage will only become more entrenched in practice if not in Constitutional law, and an adverse ruling would invite chaos.
Conversely, exactly what would be at stake if the court eventually sided with the string of post-Windsor decisions recognizing a right to marry was on display in Virginia this afternoon. The Fourth Circuit Court of Appeals issued an order shortly after 1 p.m. recognizing the effect of the Supreme Court's inaction. County clerks prepared for a rush, and couples started lining up for the opportunity to publicly declare their love and commitment for one another, and to have that commitment recognized and validated by the state. It may be frustrating for many advocates to have the court, through its inaction today, maintain some of the legal limbo in which same-sex couples still find themselves in many states. But they must also recognize that with every passing day and every new marriage, it becomes that much more certain that equality will eventually be the law throughout the land.
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