Lisa Keen | The Keen Files
If state bans against same-sex marriages were a table, the striking down of the Defense of Marriage Act last year was like the loss of a leg. The announcement last week that the U.S. Supreme Court would not hear appeals to keep such bans on the books was like the loss of a second leg. The table has fallen. All that is left is for the Supreme Court to remove the final two legs — by declaring such bans unconstitutional and by ensuring that its declaration does not provide a way for any individual state to continue its ban.
The stunning rapidity with which much of this has already happened has left even the most seasoned LGBT activist in awe. Yes, it took 10 years to go from the first trial in Hawaii to the landmark ruling in Massachusetts. And yes, it took roughly another 10 years to witness the decimation of the most harmful part of DOMA. But the number of states — either by legislative action or court order — enforcing the principle of equal protection in marriage law has climbed dramatically in the past 12 months, from 14 in October 2013 to 29 so far this month.
And the victory is not in numbers only. The states that have entered the equality column with regards to the right to marry include some of the nation’s most conservative: Utah, West Virginia, and North Carolina, across four circuits: the 4th, 7th, 9th, and 10th.
There have been some breath-holding moments: Two days after the U.S. Supreme Court refused, on Oct. 6, to hear seven petitions concerning five state bans on same-sex marriage, there was a bit of a puzzlement, even pause. On Oct. 7, the 9th Circuit declared bans in Nevada and Idaho to be unconstitutional, but Justice Anthony Kennedy granted a stay against that circuit’s decision — a stay very much like the ones the Supreme Court had just lifted in three other circuits.
The 9th Circuit decision had been issued by a three-judge panel, so Idaho had a right to ask the full 9th Circuit to hear an appeal, and it plans to press that appeal.
The puzzlement was that Kennedy’s order included Nevada, and Nevada state officials had not asked for a stay. They had not defended their ban in court and they were ready to enforce the 9th Circuit panel decision. Why would Kennedy include Nevada?
Turns out, it was apparently a mistake, and within hours, Kennedy removed Nevada from the stay. By Friday, the entire court lifted the stay on the 9th Circuit panel decision. Not one justice registered a dissent.
The Supreme Court had already surprised many court observers on the first day of its 2014 session when it declined to hear appeals from the five states regarding the constitutionality of state laws that ban marriage licenses or even recognition of marriages for same-sex couples. The surprise was not that the court declined to hear the appeals; a number of seasoned court watchers suggested that scenario because all the lower courts — three federal circuits and five federal district court judges — had agreed such bans are unconstitutional. The Supreme Court does not tend to get involved in disputes where all the courts below agree.
The surprise was that the Supreme Court announced its decision so soon. It had sat on previous LGBT-related cases (DOMA and Prop. 8) for weeks before announcing whether it would hear those appeals. The court receives about 10,000 requests each year to review lower court decisions and accepts only about 75 to 80 of those. In order to accept a case, at least four of the nine justices must agree to do so.
So, in the case of the marriage ban appeals, there were not four justices who wanted to grant the reviews. That meant six justices said, “No, we don’t want to hear any of these marriage cases.”
Those six justices knew that, by denying the appeals, the Supreme Court was allowing at least five — and perhaps as many as 11— states to begin issuing marriage licenses to same-sex couples immediately.
“I would say the Supreme Court gave an unmistakable signal to lower courts and the remaining states that it is unconstitutional to deny gay people the freedom to marry and equal protection and respect under the law,” said Evan Wolfson, head of the national Freedom to Marry group.
That quickly became the assessment of court observers and state officials across the country. Some expressed that assessment in a way that, while technically incorrect, captured the spirit of the Supreme Court’s impact. West Virginia’s governor and attorney general both issued statements indicating they believed the Supreme Court had “made it clear that laws banning same-sex marriage have been declared unconstitutional.”
At least two states are still clinging to the edge of the marriage ban table: On Thursday, the Supreme Court of South Carolina issued an order preventing state judges from issuing marriage licenses to any same-sex couples until a decision is made by a federal court in South Carolina. It’s a long shot effort: The 4th Circuit, which includes South Carolina, has ruled such bans are unconstitutional. But the 4th Circuit decision came from a three-judge panel, and South Carolina is apparently pinning its hopes on getting from the full 4th Circuit bench a decision that counters that of the three-judge panel. The Kansas Supreme Court also issued a decision last Friday ordering a county clerk to stop issuing marriage licenses to same-sex couples.
And some supporters of bans on same-sex marriage point out that the Supreme Court is simply waiting for a circuit to come up with a ruling that is in conflict with the four appeals courts that have previously ruled. They note that Justice Ruth Bader Ginsburg said in a recent public appearance that a decision contrary to these other appeals courts would create a greater “urgency” for the Supreme Court to take a marriage case.
But if there was any real likelihood that the Supreme Court might eventually uphold the constitutionality of such bans, it seems quite unlikely that six justices would have rushed to announce on the first day of the court’s 2014 session that it would allow lower court rulings in as many as 11 states to go into effect, enabling same-sex couples to marry almost immediately in those states. Why create the potential need for years of corrective legal action when the court could simply wait for the right case to come along and then make its decision?
What last Monday’s announcement means, as Wisconsin Republican Governor Scott Walker acknowledged in a statement on the campaign trail, is that the issue of the constitutionality of denying same-sex couples the right to marry is “resolved”: Such bans are unconstitutional and the Supreme Court will most likely say so if one of the remaining circuits issues a decision to the contrary.
The 6th Circuit could issue its decision any day now. The 5th Circuit announced Sept. 25 that a three-judge panel would hear appeals from both Texas and Louisiana, but briefs in the Louisiana case are not expected to be completed until Nov. 7.
Meanwhile, more states within the circuits that have already declared the bans unconstitutional may soon join the pro-equality list. A federal judge issued a ruling Oct. 12, that Alaska’s ban is unconstitutional. A federal judge has given Arizona until this Thursday, Oct. 16, to file briefs explaining why it should not comply with the 9th Circuit panel ruling.
—Lisa Keen is an award-winning journalist who spent 18 years as editor of the Washington Blade. See more news from Keen and other select veteran gay journalists at keennewsservice.com.