On December 19, the Supreme Court issued an Order denying a Motion by Florida Attorney General Pam Bondi seeking an extension of a stay issued by the U.S. District Court in Florida of its ruling striking down the state’s ban on same-sex marriages. As usual, the Court issued no explanation for its decision, but it did indicate that Justices Clarence Thomas and Antonin Scalia would have granted the Motion. This doesn’t necessarily signify that the vote to deny the Motion was 7-2; it does signify that there was not a majority among the Justices for granting the Motion, and that Justices Thomas and Scalia felt strongly enough about the issue to have their positions noted for the record.
While the Court did not explain its action, the signal it sent seems clear. There is a majority on the Supreme Court to strike down state bans on same-sex marriage. That is the only explanation for this ruling that makes sense, and the story of the past year tells why.
Almost exactly a year ago, the U.S. District Court in Utah struck down that state’s ban on same-sex marriage, and the trial judge refused to stay his decision pending appeal. The decision relied heavily on the Supreme Court’s June 2013 ruling in U.S. v. Windsor, which declared unconstitutional Section 2 of the federal Defense of Marriage Act, which prohibited the federal government from recognizing same-sex marriages that had been validly contracted under state law. While the state of Utah scrambled to seek relief from the U.S. Court of Appeals for the 10th Circuit, same-sex couples began marrying in the state. The 10th Circuit quickly issued its refusal to stay the decision, and the state applied to the Supreme Court for a stay. Meanwhile, hundreds of Utah same-sex couples and couples from neighboring states were getting married. By the time the Supreme Court issued a stay on January 6, 2014, about 1300 couples had married.
The Supreme Court’s stay, unexplained, nevertheless sent a message to lower federal courts. Although there were a few gaps along the way during which same-sex couples were able to marry briefly in a few states, on the whole pro-marriage equality decisions were stayed pending review unless state governors decided not to appeal them (as in Oregon and Pennsylvania). Then the Circuit Courts of Appeals started weighing in, with three circuits ruling for marriage equality over the summer and the states filing petitions for review in the Supreme Court. On October 6, the Supreme Court denied petitions to review the pro-marriage equality rulings from the 10th, 4th and 7th Circuits, thus lifting the stays in several states, and the next day the 9th Circuit ruled for marriage equality in cases from Nevada and Idaho. Since October 6, the Supreme Court received stay requests from several states in these four circuits, and all such requests were denied. Until relatively recently, the denials were not accompanied by any indication of dissension within the Court, but more recently Justices Thomas and Scalia were noted as being in favor of granting the stays.
Meanwhile, marriage equality was gradually expanded to all the remaining states in the 4th, 7th, 9th and 10th circuits, bringing the number of marriage equality states to 35.
In Florida, the federal district court and several state trial courts struck down the state’s same-sex marriage ban during the summer, and the state filed appeals. The federal trial judge stayed his decision for a brief time, mainly to see what would happen on the pending certiorari petitions in the Supreme Court. After the Supreme Court denied the petitions on October 6, the federal trial judge extended his stay through 5 pm on January 5, to give the state time to seek a further stay from the 11th Circuit and/or the Supreme Court. The 11th Circuit declined to extend the stay, and then last Friday, the Supreme Court followed suit. This is the first time that the Supreme Court has voted affirmatively (albeit without releasing the vote breakdown to the public) to allow a same-sex marriage order go into effect within a circuit whose court of appeals has not yet spoken on the merits.
Meanwhile, petitions for review are pending at the Supreme Court from a ruling by the 6th Circuit, the first Court of Appeals in the past year to reject marriage equality claims, and a petition is also pending from an adverse trial court ruling in Louisiana. The 5th Circuit Court of Appeals is poised to hear oral arguments in several marriage equality cases on January 9. It seems overwhelmingly likely that the Supreme Court will grant one or more of the pending certiorari petitions, placing the issue of marriage equality directly on its agenda without the complication of standing or ripeness issues to provide an “out” from a ruling on the merits.
With the denial of a stay extension in Florida, marriage equality will spread to its 37th state by the time the Court meets to discuss the pending petitions on January 9 (the same date as the 5th Circuit argument). (Same-sex couples can marry in some counties in Missouri, in the 8th Circuit, as a result of some local court rulings that have not been stayed.)
In light of this one-year history, it seems clear that at least five members of the Supreme Court are comfortable with the idea of marriage equality going into effect in Florida without the authorization of an appellate ruling on the merits, which seems to me a very clear signal of the ultimate outcome — an outcome that Justice Scalia predicted in his dissent from the Court’s June 2013 ruling in United States v. Windsor, which struck down the ban on federal recognition of same-sex marriages. Scalia said that the Court’s ruling told plaintiffs what to argue and lower courts how to rule in favor of same-sex marriage, and his comments (as well as similar comments in his dissent from the Texas sodomy law ruling in 2003, Lawrence v. Texas) have been frequently cited and quoted in lower federal court rulings over the past year.
The outcome now appears overwhelmingly probable. The only questions remaining are when the Court will decide, and which constitutional theories it will embrace? Some of the courts of appeals have relied on due process freedom to marry arguments, others on equal protection arguments, and some on a combination of the two. The choice of theory is mainly of interest to legal scholars and pundits. The bottom line is what interests the general population, and that bottom line is becoming increasingly clear.Tags: gay marriage, marriage equality, same-sex marriage, United States Supreme Court
You state that:
“With the denial of a stay extension in Florida, marriage equality will spread to its 37th state …”
Isn’t it actually the 36th? You state earlier that:
“marriage equality was gradually expanded to all the remaining states in the 4th, 7th, 9th and 10th circuits, bringing the number of marriage equality states to 35.”
I don’t find any mention of a 36th state allowing marriage equality so wouldn’t it be Florida?
Same-sex couples can marry in two counties in Missouri as well as the city of St. Louis at present. So actually Missouri is #36 – at least in part.