On Monday, the Supreme Court, somewhat surprisingly, declined to grant cert to any of the cases in which appeals courts had overturned (or upheld a lower court’s overturning of) state bans on gay marriage. The specific cases the Court could have agreed to hear included gay marriage bans in Indiana, Oklahoma, Utah, Virginia, and Wisconsin that were struck down.
However, the impact of the Supreme Court’s declining to weigh in will be felt not just in those states, but in every state covered by the appeals court circuits whose precedents will now firmly stand. For example, the 10th Circuit, which overturned the Oklahoma and Utah bans on same-sex marriage, also has authority over (and is based in) Colorado, meaning that Colorado’s ban on same-sex marriage—about which a lawsuit has already been filed—is likely to be overturned in short order.
One analysis suggests that today’s refusal to grant cert will bring same-sex marriage to eleven more states in addition to the nineteen (plus Washington, D.C.) in which it is already legal.
And that’s before the rest of the country joins the parade toward accepting same-sex marriage. The Supreme Court is speaking by not speaking, and it is unlikely that any federal court of appeals will uphold any gay marriage ban going forward (though the 5th Circuit in Texas remains a wildcard).
Americans do not like to think of Supreme Court justices playing politics, but in these days of hyper-partisanship—see the chief justice’s reversal on Obamacare, and the many protests on the court steps—it would be naive to think they don’t.
One can assume that the liberal justices on the court are perfectly happy with the lower courts’ decisions and therefore had no interest in taking the time simply to reaffirm those decisions. But granting a case cert requires only four votes—which raises the question of whether four conservative justices (a) think that the lower courts were wrong, (b) think that the Supreme Court would overturn them, and (c) think the whole thing is worth fighting over.
As to the first question, we’ll probably never know the answer. It’s likely that at least one or two of the justices believe that such matters should be left to state legislatures or voters.
Whether the court might have overturned any of the appeals courts’ rulings is a slightly harder question, though the answer is probably not. Justice Anthony Kennedy sided with the court’s liberals to overturn the federal Defense of Marriage Act (U.S. v. Windsor, 2013), which might imply support for same-sex marriage—especially given his repeated use of the word “dignity” and “equality” in his majority opinion. However, the expressed foundation of Kennedy’s repudiation of DOMA was federalism: “DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage.”
Which Kennedy would we have gotten? The man focused on “dignity” and “equality” or the man focused on federalism? Again, when it comes to same-sex marriage, we’ll probably never know. Justice Kennedy is no doubt sighing with relief right now, because he probably doesn’t know either.
This brings us to the third, and most interesting, question: Is it worth fighting over? Despite occasional massive lapses in judgment and judicial propriety, most judges know that they are not legislators. They know, and say explicitly in ruling after ruling, that if people don’t like the laws that are being passed, the solution is to elect different presidents, governors, and legislators.
They also know that the Supreme Court’s appearing repeatedly to be political is greatly harming its reputation. So as they see a nation drifting inexorably toward the “equality” and “dignity” position, and away from the banning of same-sex marriage—does anybody think Prop 8 would pass in California or most other states today?—would it be wise for the court to jump in and, in William F. Buckley’s words, “stand athwart history, yelling Stop!”?
Legally and philosophically, it’s not an easy call: federalism is a cornerstone of both this nation’s Founding and its ongoing success. (The trampling of federalism, the centralizing of everything important, such as health care under Obamacare, is being demonstrated daily as disastrous for our nation’s model of discrete “laboratories of democracy.”) But if marriage is a fundamental right in the way that “freedom of association” is—as a form of freedom of speech and therefore a First Amendment (and natural) right—then no state has the right to encumber it, including by claiming federalism.
Many conservatives will be frustrated with today’s Supreme Court action (or inaction, as the case may be), believing that same-sex marriage is fundamentally wrong, that it’s not actually “marriage,” or that this whole mess should be decided by the states—as has been the case for decades until now. I’m inclined to disagree. I do think freedom of association trumps all in this situation. But it is a legitimate debate.
However, in a purely political sense, conservatives (or more specifically Republicans, not all of whom are conservative) should be pleased with today’s decision. The Democratic base is unmotivated, sapped of energy by the ongoing failures of a president whom it had invested so much in, both financially and emotionally. Voters on the left see him failing with immigration, failing with the economy, massively benefitting the “one percent,” and, most egregiously, tiptoeing back into war in the Middle East. In short, many of these people will be staying home on Election Day.
The last thing Republicans and conservatives need is an issue to motivate the liberal base to get out and vote four weeks from tomorrow. For example, here in Colorado, because incumbent Democratic Senator Mark Udall has approximately zero accomplishments to run on, the majority of his campaign has been to pillory his challenger, Republican Congressman Cory Gardner on issues such as abortion and birth control. (Even The Hill recognizes the “war on women” rhetoric is wearing thin, but it’s all Udall has.)
If the Supreme Court were to have taken the same-sex marriage cases, gay activists in this state (including two of the four best-known major funders of Democrats here, Congressman Jared Polis and software millionaire Tim Gill) could start rallying voters over the importance of keeping a Democrat-controlled Senate because of potential future federal court, including Supreme Court, vacancies. There is not a similarly strong motivation on the conservative side specifically based in the issue of gay marriage.
Yes, many individual conservatives do feel strongly about the subject. It’s just that they’re already highly motivated to beat Mark Udall and other undistinguished rubber stamps for the Obama administration—no matter how much “independence” they laughably claim—from Alaska to Louisiana.
Again, from the “we’ll probably never know” files, we can wonder whether the Supreme Court’s conservative justices considered the political implications of hearing the state same-sex marriage ban cases. I hope they didn’t, but in any case they got it exactly right by letting sleeping dogs lie.
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