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End Game

October 6, 2014

With the Supreme Court’s dismissal today of seven appeals from five marriage equality cases from five states, same-sex marriage became legal in all of those five states:  Indiana, Oklahoma, Utah, Virginia and Wisconsin. In response to the news, some county clerks in Colorado began issuing marriage licenses, and the Republican Attorney General, John Suthers, announced that his office will quickly seek to lift judicial stays against same-sex marriages.

Pretty much no one saw this coming. I didn’t think the Supreme Court wanted to hear another marriage equality case just one year after striking down the Defense of Marriage Act, in a decision that Justice Antonin Scalia angrily denounced for all but legalizing same-sex marriage itself. But the proliferation of federal Court of Appeals decisions in favor of marriage equality seemed to force the Court’s hand. Little did I know.

The Supreme Court’s rules require that it consider any appeal that four justices vote to consider. There are four liberals and four conservatives, counting Justice Anthony Kennedy in the middle. The absence of four votes means that neither side voted to consider the same-sex marriage cases. The liberals realized that not hearing the cases meant the immediate legalization of same-sex marriage in five states; the conservatives must have decided that their hand will be stronger if even just one Court of Appeals upholds a ban on same-sex marriage.

So here we are: as of this evening, same-sex marriage is legal in 25 states plus the District of Columbia. All four federal Courts of Appeals that have ruled on marriage equality have held that same-sex marriage is constitutionally protected – not counting the two Courts of Appeals that ruled against DOMA before the Supreme Court did.

As of this evening, 53 percent of Americans live in a jurisdiction that permits same-sex marriage. But wait, there’s more.

The Fourth Circuit Court of Appeals ruled in favor of same-sex marriage in the Virginia case, and that precedent, left intact by the Supreme Court, applies in the rest of the Fourth Circuit: in North Carolina, South Carolina and West Virginia. The Ninth Circuit precedent upholding marriage equality in the California Proposition 8 case applies in Alaska, Arizona, Idaho, Montana and Nevada. The Tenth Circuit Court of Appeals precedents from Utah and Oklahoma will apply in Kansas and Wyoming.

That’s ten more states – 35 in total.

Today’s Supreme Court action nearly assures that the Court will not decide a marriage equality case before the end of the current term next June. The next case coming along is now in the Sixth Circuit Court of Appeals, which on August 6 heard arguments in cases from all four states in that circuit: Kentucky, Michigan, Ohio and Tennessee. Cases are pending in the Fifth and Eleventh Circuit Courts of Appeals, covering six more states.

If those cases are decided in favor of marriage equality, today’s Supreme Court action signals that the Court will not agree to consider them. If those cases are decided against marriage equality, the Court is not likely to decide whether to consider them until after its calendar for this term is filled. That means those cases would likely be heard next term, after the country has had significantly more time to adjust to being a majority marriage-equality jurisdiction.

Same-sex marriage will be legal throughout the United States, by rule of constitutional law, probably in 2016 and definitely by 2017.

 

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One Comment
  1. Scottypv permalink

    The best analysis I’ve read yet.

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