Blog Post

Constitution Check: The legal battle over same-sex marriage is over – or is it?

October 7, 2014 | by Lyle Denniston

Lyle Denniston, the National Constitution Center's constitutional literacy adviser, says that Supreme Court's decision to pass on rulings by three federal appeals courts on same-sex marriage doesn't necessarily mean the Court is done with the issue.

 

SupremeCourt_insideTHE STATEMENTS AT ISSUE:

 

“The [Supreme] Court officially gave no hint as to how it would rule when – or if – the same-sex marriage issue comes before it. Unofficially, I don’t see how that can be true. I don’t see how today’s decision doesn’t signal that even within the Court, the fight is over.”

 

– Garrett Epps, a Baltimore law professor and a columnist for The Atlantic, in a report on that website Monday following the Supreme Court’s refusal to review any of the same-sex marriage cases so far filed with it.

 

“The Supreme Court’s decision not to take up this issue now means that the marriage battle will continue…The people should decide this issue, not the courts.”

 

– Byron Babione, senior counsel with the advocacy group, Alliance Defending Freedom, in a statement Monday following the Court’s action.

 

WE CHECKED THE CONSTITUTION, AND…

 

It is as true as anything can be about the power of the courts to decide constitutional issues that the Supreme Court does not decide anything when it chooses not to rule on an issue laid before it. Despite that, can it be said that the constitutional battle over same-sex marriage, which has run on in America for perhaps a quarter-of-a-century, can be over just because the Supreme Court did not decide it?

 

While opponents of gay and lesbian marriage are far from giving up their challenges, it is definitely true that, before Monday, those marriages were legal 19 states and the District of Columbia because of the actions of courts, legislatures or voters in state ballot campaigns. It may also be true that, after Monday, those marriages will soon be legal in 11 other states.

 

Within hours after the Supreme Court chose not to review any of the rulings by three federal appeals courts striking down state bans on such marriages, the legal effect of that denial had spread across the country, from Virginia to Utah.   Lower courts wasted little time putting into full effect their nullification of the bans they had reviewed.

 

In a matter of weeks, at the most, bans in other states are likely to fall in five more states, and it would be unlikely that the Supreme Court would second-guess such a decision. Those are the five states in the geographic area that makes up the federal judiciary’s Ninth Circuit, and that appeals court is the one that earlier nullified California’s “Proposition 8” ban and few observers expect it to change its mind for other states.

 

So, when only 15 states remain with prohibitions on same-sex marriage, would that be the end of the battle?

 

Not necessarily. Four other federal appeals courts are now, or soon will be, reviewing the constitutionality of bans in a total of seven more states, and it is not at all out of the question that one of those courts will break ranks and uphold a state prohibition. Because what the Supreme Court did on Monday did not set any precedent – one way or the other – on the validity of same-sex marriage bans, the lower courts are free to go ahead as if nothing had happened when the Justices opened their new term in Washington and issued their first set of orders.

 

But unless that scenario unfolds quite quickly (and it won’t in at least three of those four appeals courts, because the cases are just getting started in those), the same-sex marriage question is probably not going to come before the Supreme Court again this term, at least not in time to be decided by the term’s end next June or July.

 

Assume that the Justices are not going to rule on it for the remainder of the current term, the dynamic of the constitutional situation they face on returning for a new term a year from now may have changed markedly.   There would be tens of thousands of newly married gay and lesbian couples, in an overwhelming majority of the states, and other states may have chosen on their own to allow same-sex marriage, either through their legislatures or their state courts.   Would the Court then want to get involved?

 

It just might. If there is, at that point, a split among federal appeals courts on the constitutional question, it is highly doubtful that the court would continue to avoid getting involved. Such a split among lower federal and state courts would not be constitutionally comfortable for the nation.

 

The challenge to the Justices at that point would be whether there are five of them who would make a majority and rule that the states do have clear authority to keep their same-sex marriage bans. If it did that, officials in states that had had their marriage bans struck down but who would like to have them restored could use an available legal mechanism for attempting to get those rulings reconsidered. That is a scenario that could keep the marriage question roiling for years to come, unless the political sentiment in the country had developed to the point that no state would try to keep a ban intact or get it restored.

 

The Supreme Court’s choice on Monday to avoid getting involved in the marriage controversy at this point did, indeed, take some of the uncertainty out of it, but by no means all.

 

The undeniable fact is that, as of now, the Supreme Court has not had the last word on that constitutional issue.


 
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