SCOTUS decision not to hear marriage equality case appeals shows you can, in fact, hurry love. But what else does it mean?
SCOTUS decision not to hear marriage equality case appeals shows you can, in fact, hurry love. But what else does it mean?
The Supremes got it wrong. In 1966, that is, with their No. 1 hit, “You Can’t Hurry Love.” Forty-eight years later, the legal Supremes (as in the United States Supreme Court) proved you can hurry love.
Many of us were surprised to learn on Monday, Oct. 6, that the U.S. Supreme Court had declined to accept any of the seven pending petitions seeking further review of federal appeals court decisions striking down laws denying same-sex couples the freedom to marry in Utah, Oklahoma, Indiana, Wisconsin and Virginia.
With the Supreme Court’s rejection of those petitions, the appellate court decisions became final, and same-sex couples in those states may now marry.
Additionally, in a number of other states that fall geographically within the same federal appellate districts — Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming — marriage is coming quickly as well. Very soon, same-sex couples in 30 states and the District of Columbia should be able to marry or have their marriages from other states recognized.
The question now is what next? What about the other 20 states?
The 9th Circuit Court of Appeals, which covers much of the Western United States, issued a decision striking down marriage bans in Nevada and Idaho — with Alaska, Arizona and Montana believed not far behind once the decision becomes final (Nevada state officials have said they will not appeal, but U.S. Supreme Court Justice Anthony Kennedy on Wednesday, Oct. 8, issued a stay of the ruling in the Idaho case).
The 6th Circuit — which is considering appeals in Michigan, Ohio, Tennessee, and Kentucky — is expected to rule any day, although that result is far from certain. Wins in those two appellate districts could move us forward to 39 states.
That leaves what many consider the three most conservative federal appellate courts that have yet to weigh in: the 5th Circuit (Texas, Louisiana, and Mississippi), the 8th Circuit (North Dakota, South Dakota, Nebraska, Arkansas, and Missouri), and the 11th Circuit (Florida, Georgia, and Alabama).
There currently is marriage litigation working its way through each of these three appellate districts, with the Texas and Louisiana cases in the Fifth Circuit being furthest along. Lambda Legal, along with co-counsel, is representing couples in Louisiana, Georgia and North Dakota.
So what does the Supreme Court’s decision to let same-sex couples marry in these five states say about the future of litigation elsewhere?
Well, technically, it only means that there were not at least four justices who wanted to hear these cases. We don’t know how the individual justices voted or why they decided not to hear any of the cases.
While this doesn’t tell us whether any particular justice agreed or disagreed with either the result or the analysis and reasoning the different appellate courts used to reach those decisions, it does change the tone of the arguments that will be held in future courts.
We certainly might infer that the justices did not see anything about these decisions so extreme or clearly wrong that they needed to step in immediately and stop these marriages from occurring. It also seems unlikely the Supreme Court will feel the necessity to take up the issue as long as all of the appellate courts are in agreement.
Justice Ruth Bader Ginsburg certainly has suggested as much in a recent interview.
But the court could have done nothing and waited to watch the litigation around the country play out further. Why dismiss the petitions for review so quickly after having just put all the favorable marriage decisions on hold a few months ago?
Some have suggested the court denied the pending petitions now to send a signal to the remaining appellate courts that the justices would need to see better justifications for these marriage bans than they have seen so far. Others have conjectured that, having had time to look at the petitions, the court was moved that forcing same-sex couples to wait inflicted ongoing harm on families who needed the stability and protections marriage might provide to those who needed it most.
Indeed, Lambda Legal’s case from Indiana involved an appeals court lifting its stay — a rare situation — to protect a couple, one of whom is battling stage IV ovarian cancer.
Who knows?
One thing seems sure. If the court takes up a marriage decision in the future, it will be doing so in a very different world — a world where the vast majority of the population now lives in marriage equality states, where many same-sex couples have married and are raising families, and where public opinion has shifted more dramatically than one could have imagined just a few years ago.
In the meantime, we savor the victories!
Kenneth D. Upton Jr. is senior counsel for Lambda Legal, the oldest and largest national legal organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and people living with HIV.
This article appeared in the Dallas Voice print edition October 10, 2014.