WASHINGTON (CNS) — When the Supreme Court declined to review the appeals on rulings striking down same-sex marriage bans as unconstitutional, many people were left second-guessing why this happened and what it means for the future of same-sex marriages and bans on such marriages.
The high court’s action — or more accurately, inaction — gave the immediate go-ahead for same-sex marriages to take place in Indiana, Oklahoma, Utah, Virginia and Wisconsin, where the lower courts’ rulings against bans on such marriages will stand. It also cleared a path for same-sex marriages in six other states within the jurisdictions of these federal circuit courts.
Although the implications of the high court’s move on the first day of its new session were fairly far-reaching, opponents of same-sex marriage and its supporters — for different reasons — were not satisfied.
“Millions of Americans had looked to the court with hope that these unjust judicial decisions might be reversed,” said an Oct. 6 statement from the chairmen of two U.S. bishops’ committees.
“The Supreme Court’s action fails to resolve immediately the injustice of marriage redefinition, and therefore should be of grave concern to our entire nation,” said Bishop Richard J. Malone of Buffalo, New York, chairman of the Committee on Laity, Marriage, Family Life and Youth, and Archbishop Salvatore J. Cordileone of San Francisco, chairman of the Subcommittee for the Promotion and Defense of Marriage.
While Catholic teaching opposes discrimination against homosexuals, the church holds that homosexual acts are always immoral and that marriage can only be a union between one man and one woman.
Supporters, pleased by the signal the court seemed to be sending, still wished the judges had been more definitive and state outright that not allowing same-sex couples to marry is discrimination and therefore unconstitutional.
The high court’s failure to take up same-sex marriage led to plenty of changes at the lower court level and some confusion.
On Oct. 7, the 9th U.S. Circuit Court of Appeals struck down same-sex marriage bans in Idaho and Nevada. Then Supreme Court Justice Anthony Kennedy temporarily blocked same-sex marriages in Idaho and Nevada but lifted the stay for Nevada after a request from state officials. Late on Oct. 10, Kennedy lifted Idaho’s stay, and at least one Idaho county began issuing licenses that afternoon.
Two days later, the attorney general of West Virginia said the state’s ban on same-sex marriage was no longer defensible, while officials in South Carolina, North Carolina, Kansas and Wyoming vowed to fight to keep a ban in their states in effect. However, by Oct. 13, some North Carolina counties began issuing marriage licenses to same-sex couples.
Other states also were on the brink of allowing same-sex marriages.
U.S. District Court Judge Timothy Burgess in Alaska ruled Oct. 12 that same-sex marriages could proceed there. Gov. Sean Parnell said the state would appeal. That appeal would go to the same 9th Circuit Court that struck down the Idaho and Nevada bans. Alaska has a three-day waiting period for marriage licenses once the applications are submitted. The Associated Press reported applications would be accepted beginning Oct. 13, which is not observed as a state holiday in Alaska.
In Arizona, which also is in the 9th Circuit, a District Court judge gave the parties in two lawsuits challenging the state’s ban until Oct. 16 to file briefs explaining why the prohibition should or should not stand. U.S. District Judge John Sedwick issued an order Oct. 9 saying he thinks the circuit court ruling applies to Arizona’s ban and gave the parties challenging the ban, and the private firm, Alliance Defending Freedom, which is defending the state’s law, one week to respond.
The University of Notre Dame announced Oct. 8 that it would extend benefits to all legally married spouses of employees, including same-sex spouses, the South Bend Tribune reported.
A fair number of people also took on the role of Monday morning, or in this case, Monday afternoon or Tuesday morning quarterback, trying to second-guess what the Supreme Court justices were thinking and what their next moves might be.
Since the justices did not issue any comments when they declined to hear the same-sex marriage cases, a lot of weight was suddenly given to what at least one justice, Ruth Bader Ginsburg, has recently said publicly on the issue.
When asked in September at the University of Minnesota Law School how the court might rule on same-sex marriage, she pointed out that “there is no need for us to rush to step in” since the federal appeals courts ruled the same on the issue, calling it unconstitutional to ban same-sex marriages.
She said the high court would be more apt to weigh in if another circuit court, such as the 6th Circuit, rules differently, setting up a discrepancy among the lower appeals courts.
And that could happen sooner than later, even this year, said Steve Woolpert, political science professor and dean of liberal arts at St. Mary’s College of California in Moraga. He told Catholic News Service that the 6th Circuit might rule differently on upholding a ban, but added that it would have to come up with a persuasive and legitimate argument to justify it that none of the other circuit courts have raised.
Meg Penrose, professor of constitutional law at Texas A&M’s University School of Law — who has followed oral arguments in the 6th Circuit and practiced in the 5th Circuit — similarly predicted that one of those courts “will give a contrary ruling” that will spur the Supreme Court to act.
She said she likes that the court is staying out of a contentious cultural issue but said she is “sad, troubled and frustrated that it is steering clear of constitutional issue” and allowing it instead to be figured out “in patchwork” fashion with federal courts, not states, determining the law.
She said the appeals that were before the Supreme Court were “well briefed and very clear,” which makes it all the more perplexing as to why they chose not to hear them.
“There is no way to read the Supreme Court tea leaves. They operate with great anonymity above the political fray, which is good.” But she still wants them to shed some clear light especially when “laws are changing so quickly they are trying to catch up to the laws on the ground.”
That’s why she said she can’t even test her students on same-sex marriage laws.
Woolpert similarly pointed out how the laws and public opinion on this issue are changing.
“No one decision settles things,” he said, noting that laws on same-sex marriage have become “starting points” for either setting limits or establishing further expansion.
He also predicts a lot more public deliberation particularly among religious groups and political leaders and candidates, noting “the momentum will continue to expand.”
And although public sentiment isn’t a basis for the court’s opinion, John Vile, dean of the University Honors College at Middle Tennessee State University and co-editor of the Encyclopedia of the First Amendment, said it does come into account.
For example, he cited Loving v. Virginia, a 1967 case where the Supreme Court outlawed a state law against interracial marriage, “but only after most other states had already done so.”
“The court doesn’t usually count noses, but it does sometimes seek to smooth out what appear to be anomalies in states,” he said.
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