By Michael Doyle
The Supreme Court ducked the same-sex marriage question Monday, effectively striking down marriage restrictions in five states but leaving for another day a widely anticipated constitutional clash.
The court's stunning decision not to hear any of the seven marriage cases presented eliminates same-sex marriage bans in Virginia, Indiana, Wisconsin, Utah and Oklahoma. The decision also undercuts bans in six other states covered by the three appellate courts that have ruled.
"I would call this a huge step forward, but the job is still not done," Evan Wolfson, the president of Freedom to Marry, said in an interview Monday.
A denial of a petition to the high court, as happened Monday, leaves intact the lower appellate court decisions that struck down the five state bans. Same-sex marriages began within hours in Virginia, Wisconsin and Indiana. Utah officials, who'd been vigorously defending the state's ban, likewise capitulated after the court's decision. Oklahoma began issuing marriage license to same-sex couples Monday.
"Each state agency has been advised to begin today to recognize all legally performed same-sex marriages," Republican Utah Gov. Gary R. Herbert said via Twitter, adding that he was "surprised and disappointed" in the court's decision.
Practically speaking, the high court's decision also touches Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming. Those states had banned same-sex marriage but are part of circuits where appellate courts have ruled, so they're covered by the respective appellate courts' reasoning.
"I think it might take a little paperwork, or a court order," Wolfson said of same-sex marriage in the covered states, but "this opens the door."
Mary Bonauto, an attorney with Gay & Lesbian Advocates & Defenders, called the decision "fantastic news" that sends a "powerful signal to the many other courts considering the issue that there is no reason to delay and perpetuate the harms to same-sex couples around the nation."
Before the court's decision Monday, 19 states and the District of Columbia had permitted same-sex marriages. With the decision, 30 states as well as D.C. will permit same-sex marriages.
The court's decision also means the question of whether the Constitution protects the right of same-sex couples to marry will continue to percolate in regions where appellate courts haven't ruled.
A decision is still pending by the 6th U.S. Circuit Court of Appeals, which heard challenges Aug. 6 to same-sex marriage bans in Kentucky, Michigan, Ohio and Tennessee. A highly regarded George W. Bush administration appointee, Judge Jeffrey Sutton, is widely considered to be the swing vote in the case.
The 9th U.S. Circuit Court of Appeals is weighing same-sex marriage bans in Idaho and Nevada, after an oral argument Sept. 8.
"The court's decision not to take up this issue now means that the marriage battle will continue," noted Byron Babione, senior counsel for the conservative Alliance Defending Freedom, stressing that there are still "cases working their way to the Supreme Court."
South Carolina Attorney General Alan Wilson wasn't yet willing to concede. "Until the courts have ruled on the matter, South Carolina will seek to uphold our state constitution," he said.
The still-unresolved questions include what part of the U.S. Constitution, precisely, protects same-sex marriage rights. Lower appellate courts have based their rulings on different reasoning, from a fundamental right to marry to a guarantee of equal protection.
The Supreme Court justices had the marriage cases listed for consideration at their private conference Sept. 29. At least four justices must agree for a case to be heard.
One potential impediment to the cases being heard is that, at present, there's no split among appellate courts that have ruled on same-sex marriage. By putting off a decision, the high court might be waiting to allow a potential split to arise.
Some justices may also be leery of tackling an issue that's been so socially divisive. All recall the 1973 Roe v. Wade decision protecting abortion rights, in which a narrow court majority sought to resolve a dispute while it was still politically unsettled.
"A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say," Justice Anthony Kennedy said earlier this year.
Conservative justices, moreover, may have been wary of granting the cases, as most court-watchers of all stripes were anticipating that with Kennedy's expected support, a current court majority would support same-sex marriage rights.
Last year, in striking down the Defense of Marriage Act's ban on same-sex couples obtaining myriad federal benefits, the court's 5-4 majority laid the foundation for attacking state-imposed marriage limitations.
"This places same-sex couples in an unstable position of being in a second-tier marriage," Kennedy wrote then of the federal benefit restrictions. "The differentiation demeans the couple, whose moral and sexual choices the Constitution protects."
Since the court's June 26, 2013, decision in the Defense of Marriage Act case, advocates for same-sex couples have won 41 lower-court victories and have lost only twice, according to a tally by Freedom to Marry.
"If there is ever a split, the court will have to take this," attorney Lisa Blatt, who's argued frequently before the high court, said Monday. "I'm not convinced they are done with this."
(c)2014 McClatchy Washington Bureau