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The Supreme Court’s Rejection of Same-Sex Marriage Appeals Was Also a Decision Not to Decide

While today’s ruling dramatically changes the field, it also shows that the court is not rushing to weigh in on the debate.
October 6, 2014, 10:40pm
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The US Supreme Court's announcement this morning that it has rejected same-sex marriage appeals from five states was unexpected, and is being hailed as a major victory for supporters of marriage equality. Sweeping aside the judicial stays on federal appellate court rulings striking down state bans, couples will now be able to marry in Indiana, Oklahoma, Utah, Virginia, and Wisconsin. As of this afternoon, all five states have begun issuing licenses.

While legalizing same-sex marriage immediately within those states where the appeals were filed, the SCOTUS Blog notes that the decision clears the way for same-sex marriages in "any other state with similar bans in those circuits." Gay rights advocates and news outlets were quick to take this as implying that marriage will shortly be legal in Colorado, Kansas, North Carolina, South Carolina, and West Virginia. This would bring the total number of states with marriage equality to 30, up from 19, plus the District of Columbia. Evan Wolfson, president of the group Freedom to Marry, celebrated the fact that that the extension of marriage rights to those 30 states will affect 60 percent of all Americans.

However, Professor Laura Little, the Charles Klein Professor of Law and Government at Temple University, told VICE News that today's decision does not mean that marriage will automatically become legal in those other six states.

"The decision to decline review today of the same-sex marriage cases sets the stage for swift and successful challenges in many states that currently have intact bans on same-sex marriages," she said.

More lawsuits will likely be pursued, state attorney generals may decide not to continue enforcing marriage bans, and circuit precedent has certainly been set. But cases will still need to make their way through the courts in each state where courts have not struck down the bans.

Both same-sex marriage supporters and opponents had expected the Supreme Court to take up at least one marriage equality case this term. While today's ruling dramatically changes the field, it also shows that the court is not rushing to weigh in on the debate — it essentially decided not to decide. The seven separate appeals that the court declined to review were all rulings in favor of same-sex marriage. In each case, the lower courts struck down marriage bans, meaning that there was no circuit split and, therefore, no need to make a judgement. The Supreme Court simply respected the appellate rulings.

Little noted four possible reasons why the Supreme Court acted as it did. The first is that the justices saw complications with each of the cases, which would make it difficult to cleanly dispose of the issues. The second is that conservatives were scared of an up or down vote. The third, that the liberals were afraid of such a vote. While it only takes four justices to decide to hear a case, five are needed for a majority. Therefore, if the liberal or conservative justices were unsure of their ability to carry the majority vote, it would be safer not to take up the issue. The fourth possibility is that the justices determined that the states were still finding a democratic resolution to the issue, and that it was not necessary for the Supreme Court to resolve it at this time.

Since the Supreme Court decision in June of 2013 that struck down discriminatory aspects of the Defense of Marriage Act, federal courts have extended the right to marry at almost every turn. The only exceptions at a federal level have been in Louisiana and Tennessee. CNN reports that there are at least 80 pending marriage cases in all 31 states with bans still on the books.

Major rulings from the Sixth and Ninth Circuit judges in Cincinnati and San Francisco could be announced at any time. While the Ninth Circuit is expected to decide in favor of same-sex marriage in Idaho and Nevada, the Sixth appears more likely to side with state bans affecting Kentucky, Michigan, Ohio, and Tennessee. If the Sixth Circuit in Cincinnati upholds the state marriage bans, it would be the first appeals court to do so, and could precipitate the Supreme Court to take up a case and make a final decision. The more conflict there is in the lower courts, Little says, the more likely it is that the Supreme Court will feel that it is appropriate that it become involved.

Today's decision brings the total number of Americans and states in the union with access to marriage equality to nearly 50 percent. Even Ed Whelan of the Ethics Public Policy Center, an opponent of same-sex marriage, has accepted that it would now be hard for the Supreme Court to rule against further extensions, seeing as so many pro-marriage equality rulings have been allowed to stand.

While celebrating the court's actions, Wolfson has criticized its delay in making a decision to affect the entire nation, saying that inaction only "prolongs the patchwork of state-to-state discrimination" currently in existence. Declaring that all of America "is ready for the freedom to marry," he called upon the Supreme Court to "finish the job."

Church Defends Religious Freedom by Challenging Gay Marriage Ban. Read more here.

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