Alabama Gay Marriage Order Seen as Sign of U.S. Supreme Court's Direction

For legal commentators both for and against same-sex marriage -- and, apparently, for two of the Supreme Court's most conservative justices -- the court's refusal Monday to block same-sex marriages in Alabama foreshadowed a likely ruling within months to extend marriage rights to gays and lesbians nationwide.
by | February 10, 2015 AT 10:30 AM

By Bob Egelko

For legal commentators both for and against same-sex marriage -- and, apparently, for two of the Supreme Court's most conservative justices -- the court's refusal Monday to block same-sex marriages in Alabama foreshadowed a likely ruling within months to extend marriage rights to gays and lesbians nationwide.

In an indignant dissent, Justices Clarence Thomas and Antonin Scalia accused their colleagues of disrespecting the state and lamented the road ahead, harking back to Scalia's prophetic dissent in another marriage case in June 2013.

Scalia, in that opinion, argued that the court, while nominally ruling only on a federal law against same-sex couples, had actually stacked the deck for a future ruling on the right to marry. He meant it as a warning, but federal judges treated it as an invitation to a wave of decisions striking down state marriage laws.

On Monday, a majority of the court, without comment, refused to issue a stay of a federal judge's ruling giving gays and lesbians the right to wed in Alabama. Thomas, in a dissenting opinion joined by Scalia, accused his fellow justices of failing to give proper respect to a state and its citizens who had approved a law defining marriage as the union of a man and a woman.

The order reflected "this court's increasingly cavalier attitude toward the states," Thomas wrote. "This acquiescence (to the judge's ruling) may well be seen as a signal of the court's intended resolution of that question."

Ruling due by end of June

For at least one conservative analyst, the court's action, and Thomas' barbed commentary, eliminated virtually any remaining doubt about the outcome of the justices' impending review of same-sex marriage bans in Kentucky, Michigan, Ohio and Tennessee. The ruling, likely to set a nationwide precedent, is due by the end of June.

The court's unwillingness to block the federal judge's order in Alabama "signals that at least five justices have already made up their mind to concoct a constitutional right to marry a person of the same sex," Ed Whelan, a former Scalia law clerk, wrote in his blog on the National Review magazine's website.

It was much the same tone Scalia struck in 2013 when he dissented from a 5-4 ruling that struck down a law banning federal benefits for married same-sex couples. Justice Anthony Kennedy's majority opinion said the ban demeaned the couples and their children and denied them equality.

'Waiting for the other shoe'

Despite Kennedy's insistence that the court was not ruling on the right to marry, Scalia lamented, "how easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status. ... It is just a matter of listening and waiting for the other shoe."

Monday's action looks like another step in that direction. As Thomas observed, when a lower-court judge overturns a state law, the Supreme Court normally issues a stay to preserve the status quo and respect state authority until a final ruling on the law's validity. The justice noted that the court had stayed similar rulings in Utah in January 2014 and in Virginia in August, lifting the stays only when it decided not to review those cases.

Denying a stay of a lower-court order, on the other hand, usually means that a majority of the court has concluded those challenging the law -- in this instance, the same-sex couples seeking marriage licenses -- would suffer greater harm from a continued delay, and are likely to win their case.

"When the Supreme Court approaches its cases, it's not operating free of a social and political context," said Hadar Aviram, a law professor at UC Hastings College of the Law in San Francisco. In view of the dramatic swing in public opinion in the past two years, she said, "the Supreme Court might be perceiving that the ship of objection to same-sex marriage has already sailed."

The writing was already on the wall, UC Davis law Professor Vikram Amar said, when the court denied review in September to five rulings legalizing same-sex weddings in 11 states. The justices intervened in a separate case only after a contrary ruling in November by a federal appeals court in Cincinnati, the first appellate decision to uphold the state marriage laws.

"It seems to me the court is pretty strongly inclined to rule in favor of same-sex marriage proponents," Amar said. "If not, they would have to deal with all these marriages" that were legalized by the rulings they had left intact.

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