Despite Supreme Court gay marriage decision, three states vow to keep ban

The Supreme Court effectively made gay marriage legal in five states Monday. But six other states with bans will also be affected, and they're reacting in different ways.

Mike Hutmacher/The Wichita Eagle/AP
Donna DiTrani (l.) and Kerry Wilks question Sedgwick County trial court supervisor Shalyn Taylor after being refused a marriage license at the Sedgwick County Courthouse in Wichita, Kan., Monday.

When the Supreme Court surprised nearly everyone Monday by not taking any of the seven gay-marriage cases before it, the justices effectively legalized gay marriage in the five states involved in those cases, all of which had had gay-marriage bans struck down by circuit courts.

But six more states – many highly conservative – also have gay-marriage bans on the books and are governed by those circuit court decisions. While gay marriage may not be instantly legal in those states – Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming – it almost certainly will be in a matter of months, as various cases make their way through the courts and are decided based on the circuit court decisions already in place.

Reactions from lawmakers and elected officials in those states have varied widely.

Colorado Republican Attorney General John Suthers issued a statement Monday morning saying that gay marriage will be legal in Colorado "very shortly," and adding that "once the formalities are resolved, clerks across the state must begin issuing marriage licenses to all same-sex couples."

The North Carolina attorney general also said the state would stop fighting to uphold its ban, and the attorney general's office in West Virginia has said it's reviewing the legal implications of the Supreme Court's decision not to review the cases.

But in Kansas, South Carolina, and Wyoming, attorneys general and governors say they plan to fight for their right to ban same-sex marriage.

Most observers say legalization of same-sex marriage in all six states is only a question of legal formalities. In some cases, the process could be sped up by plaintiffs filing a temporary restraining order against the state to ask that it stop enforcing an unconstitutional law.

"Motions may have to be filed, but the result is basically dictated and rulings will likely come quickly," says David Codell, constitutional litigation director for the National Center for Lesbian Rights (NCLR).

The latest Gallup poll shows 55 percent of Americans favor same-sex marriage rights, while 42 percent oppose. When broken down by age group, the differences are far more skewed, with 78 percent of voters between ages 18 and 29 in favor of gay marriage. Even in some conservative states, there is significant support. A January poll in Utah – one of the states in which gay marriage effectively became legal Monday – showed voters evenly split.

Some Republicans see the issue as a drag on their party.

“We don’t have to agree with the decision, but as long as we’re not against it we should be OK,” one aide to a 2016 Republican presidential contender told Time Magazine. “The base, meanwhile, will focus its anger on the Court, and not on us.”

But opponents of gay marriage expressed anger over the decision as well as a determination to keep fighting.

"The courts have usurped the role of the people here. And we need elected officials to stand up to it," says John Eastman, a law professor at Chapman University in Orange, Calif., and chairman of the board of the National Organization for Marriage. "We intend to remind the courts that the ultimate authority in this society is the people, not themselves, and I think those states ought to fight back."

It may be easier to do in those six states indirectly affected, Professor Eastman added, since they don't have a ruling yet that directly applies to them.

But others suggest that Monday's decision is one more step on the road to full same-sex marriage rights. The Supreme Court could still hear the issue if the conservative Sixth Circuit – or another circuit – issues an opinion that upholds a gay marriage ban, but by then thousands more same-sex couples will have married.

"I think most Americans are going to accept marriage equality," Mr. Codell says. "There will be a little bit of anger expressed over the court’s ruling, but you’re seeing it, and it’s feeble."

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