The US Supreme Court on Monday declined to take up cases seeking to defend bans on same-sex marriage in five states, a move that affirms lower court rulings striking down those bans and effectively establishes gay marriage in each of those states.
The order came without further explanation from the justices. It amounts to a surprising and historic move by the high court.
“This is a watershed moment for the entire country,” James Esseks, director of the ACLU Lesbian Gay Bisexual and Transgender Project, said in a statement.
“We are one big step closer to the day when all same-sex couples will have the freedom to marry regardless of where they live,” he said. “The time has come and the country is ready.”
The denial does not establish same-sex marriage across the country, but it does send a green light of encouragement to lawyers for same-sex couples nationwide seeking to strike down similar state laws and constitutional amendments enforcing the traditional definition of marriage as a union between one man and one woman.
The five states where same-sex marriages will soon be fully legal are Utah, Oklahoma, Virginia, Indiana, and Wisconsin.
The action by the Supreme Court is highly unusual given the major implications of the court’s decision. In essence, all the justices did on Monday was decline to hear requested appeals.
But in declining to take up those appeals, the justices let stand lower court rulings that overturned the state bans.
In addition, the high court action lets stand the legal precedents set by the three federal appeals courts that affirmed rulings striking down the marriage bans.
Those appeals court precedents – from the Tenth US Circuit in Denver, the Fourth Circuit in Richmond, and the Seventh Circuit in Chicago – will apply in every state within those circuits. That means in addition to the five states that filed the appeals, same-sex marriages must soon be permitted and recognized in Colorado, Kansas, Wyoming, North Carolina, South Carolina, and West Virginia.
“Today is a joyous day for thousands of couples across America who will immediately feel the impact of today’s Supreme Court action,” Chad Griffin, president of Human Rights Campaign, said in a statement. “But let me be clear, the complex and discriminatory patchwork of marriage laws that was prolonged today by the Supreme Court is unsustainable. The only acceptable solution is nationwide marriage equality and we recommit ourselves to securing that ultimate victory as soon as possible.”
A lawyer with the conservative group, Alliance Defending Freedom, pledged to continue to fight for the courts to uphold the traditional definition of marriage.
“The court’s decision not to take up this issue now means that the marriage battle will continue,” said Byron Babione, a lawyer with ADF.
“Several federal courts – including those in the Fifth, Sixth, Eighth, and Eleventh Circuits – still have cases working their way to the Supreme Court,” he said. “ADF will continue to remain a leader in the critical effort for the freedom of the people. The people should decide this issue, not the courts.”
The high court denials caught legal analysts by surprise. Most assumed the court would take up one or more state cases to decide the same-sex marriage issue for the entire country.
Justice Ruth Bader Ginsburg had suggested in recent comments that the high court was in no hurry to address the same-sex marriage debate. She suggested that the court might wait to see if a split developed among the lower courts. Her comment proved to be a key bit of insight into the justices’ views.
The high court action on Monday comes after more than 20 federal judges, 13 state judges, and three federal appeals court panels overturned marriage bans and ordered states to begin recognizing same-sex marriages.
In comparison, during the same year-long period, only one federal judge and a handful of state judges have upheld a state ban on same-sex marriage.
Prior to Monday, 19 states and the District of Columbia legalized same-sex marriage. Thirty-one states restricted marriage to a man-woman union by statute, state constitutional amendment, or both.
Evan Wolfson, president of Freedom to Marry, praised the high court’s action, but also raised a note of caution.
“The Court’s letting stand these victories means that gay couples will soon share the freedom to marry in 30 states, representing 60 percent of the American people,” Mr. Wolfson said in a statement.
“But we are one country, with one Constitution, and the Court’s delay in affirming the freedom to marry nationwide prolongs the patchwork of state-to-state discrimination and the harms and indignity that the denial of marriage still inflicts on too many couples in too many places,” he said.
Since the Supreme Court issued its ruling in June 2013 striking down the federal Defense of Marriage Act, more than 90 lawsuits have been filed challenging state marriage bans.
Courts have struck down or limited bans in Arizona, Arkansas, Colorado, Florida, Idaho, Illinois, Indiana, Kentucky, Louisiana, Michigan, New Jersey, New Mexico, Ohio, Oklahoma, Oregon, Pennsylvania, Texas, Utah, Virginia, and Wisconsin.
Despite the obvious momentum, significant issues remain unresolved. Both the Tenth and Fourth Circuits overturned state bans based on their recognition of a fundamental right to marry the person of one’s choice without regard to gender or sexual orientation. In contrast, the Seventh Circuit ruled that the same-sex marriage bans in Wisconsin and Indiana violated equal protection principles and did not address the existence of a fundamental right.
While allowing the appeals court decisions to stand represents a major victory for gay rights, it lacks the national uniformity of a Supreme Court ruling.
Such a decision by the justices would clarify the scope of rights and protections for gay men and lesbians across America.
At the same time it would also address who has proper authority to define marriage – the states through the democratic process or the judiciary by enforcing constitutional protections.
Defenders of the traditional definition of marriage argue it should be up to elected officials at the state level and state voters to agree on an accepted definition of marriage.
Supporters of same-sex marriage counter that all individuals enjoy a constitutionally protected right to marry the person of one’s choice. They say that restricting marriage to man-woman unions violates their constitutional rights and that rights guaranteed under the Constitution cannot be restricted or withheld by majority vote.