Surprising Supreme Court decision on same sex marriage

The US Supreme Court said today that it will not hear any of the seven same-sex marriage cases that were appealed to them. Appeals Courts in all those cases had ruled in favor of overturning bans on such marriages but injunctions had been in place preventing them from actually taking place until the Supreme Court ruled. By saying they will not hear those cases, the injunctions become void and now marriages can go ahead in five new states Indiana, Wisconsin, Utah, Oklahoma, and Virginia.

They could have said nothing and that would have kept the injunctions against such time as they decided to hear a case and make a definitive ruling, and there are other cases in the pipeline. They may have decided that since there was no disagreement (as yet) among the Appeals Courts, the usual consideration for them take up an issue, there was no controversy to be resolved.

Even if a new case comes along that they decide to take up, then a decision in such a case to uphold the bans would also require deciding what to do with the couples who got married as a result of today’s decision, and that would be a total mess.

Lyle Denniston, who has been following this issue very closely, has more analysis and gives the state of play. He also explains why this decision was such a surprise and gives six reasons why it is significant. What stood out for me was #5.

Fifth, all of the new cases test the scope of the Court’s reasoning last year in striking down a key part of the federal Defense of Marriage Act. That decision, in the case of United States v. Windsor, did not deal with the core issue of same-sex marriage, but it ruled strongly in favor of equality in federal programs for same-sex couples who already were legally married under state law. In almost all of the nearly unanimous flow of lower court decisions since then striking down state bans, the judges have relied upon Windsor‘s rationale. By denying review Monday, the Court has not questioned that use of the Windsor decision.

It is tempting to read into this decision that same-sex marriage is now a done deal. That may be premature but today’s decision is clearly not good news for its opponents.

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