Supreme Court Won’t Take Up Marriage Equality Cases; Marriage Can Begin in 11 States

This morning the Supreme Court officially declined to rule on five pending same-sex marriage cases from Indiana, Utah, Oklahoma, Virginia, and Wisconsin. This means that the lower court rulings in these cases will remain intact and won’t be successfully appealed, so same-sex marriage will remain legal in a number of individual states. However, the decision also dashes many activists’ hopes that a SCOTUS ruling might be a major step forward for federally affirming that marriage equality is a right guaranteed by the Constitution.

The justices gave no reason for their rejection of these cases. The decision is a surprise, as many had predicted that the court would hear at least one of them. Some speculate that “perhaps [sense] that the country is headed toward legalizing gay marriage without their involvement,” but there’s no way to know for sure. Without the federal case, the legal battle for marriage equality will have to continue on a state-by-state basis for now.

The stay on marriages should end immediately in those five states, and marriage should begin in six other states related to those cases should be available soon.North Carolina, South Carolina, West Virginia, Colorado, Kansas and Wyoming.

Rachel is Autostraddle's Managing Editor and the editor who presides over news & politics coverage. Originally from Boston, MA, Rachel now lives in the Midwest. Topics dear to her heart include bisexuality, The X-Files and tacos. Her favorite Ciara video is probably "Ride," but if you're only going to watch one, she recommends "Like A Boy." You can follow her on twitter and instagram.

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24 Comments

  1. I just don’t understand how they can justify American equality being determined on a state by state basis.
    I mean I’m sure someone up there has some lame precedent for it or some stupid legal explanation but I’m just gonna sit here and pout for a minute while Texas stays in the friggin dark ages. #RUDE #YouSoBasicSupremeCourt

  2. I can’t quite wrap my head around the fact that Kansas is on this list. We’re part of the 10th circuit, true, but this seems to jump ahead of how much the majority of people here can accept. It’s good news, but I agree with the Notorious RBG–it is healthier for social change to be voted upon rather than dictated by the high courts. (Though that would probably delay marriage equality here far, far into the future…)

    • I agree that a slower approach is more politically effective, but it is also an essential principle that legal rights are not subject to a popular vote. If you are a citizen you get the full slate of rights, period. If slavery and bans on interracial marriage were subject to popular vote, they’d still be legal in some states.

      • I absolutely agree with you, this right should not be up for a vote. I was in Maine when the peoples’ veto went through, and that was gutting personally and socially. However, the court is also highly political, and any case dealing with same-sex marriage would inevitably be a 5-4 ruling hinging on the vote of Justice Kennedy. Under those circumstances, the court needs a compelling reason to take up the case from a civics perspective (e.g. clear violation of existenting precedent or disagreement in lower courts) and there is not an obvious bit of precedent to work with stari decisis on (sexual orientation is not grounds for strict scrutiny, unlike race in Loving vs. Virginia) and there is unanimity in the circuits. So in the broader political landscape that the court practices in, I did not anticipate that these cases would be granted cert.

        The challenge of ruling on highly divisive social issues is really, really clear in how the court handled, took up, and ruled on Brown vs. Board: Chief Justice Warren worked hard to get a unanimous ruling, and did. The fall out was still extreme, and the Federal Marshalls had to go in and protect the Little Rock Nine. While I do not believe that de jure racial segregation is analogous to state same-sex marriage bans, imagine how difficult the process of desegregation would have become if there was a clearly partisan court split on the issue. The state AGs are vowing to fight for homophobia in the way that their predecessors vowed to fight for racism, and the court is much more split, and the constitutional waters more murky than they were in the case of racial segregation, so while I’m deeply, deeply sad that we are not going to get a ‘landmark ruling’ this time, I’m also not surprised. But I’m a. cynical and b. a giant policy wonk.

    • I don’t believe that a slow approach is better. I agree with Northern-Barnarian’s sentiment that if everything was left up to democracy, that there would be a lot more legalized racism but not with the hedging part that its more politically effective. Sometimes the best way to get people to accept change is to change things for them and then have new generations grow up in a world where equality is normal and the older generations see that all is not destroyed by the lack of segregation. And sometimes it doesn’t matter what is politically better because injustice is injustice and people should have their rights now and not when its convenient for everyone else. Besides- its not like most of the recent states voted on gay marriage. It was just lower level courts who overturned bans. So its now an issue of state court deciding v. supreme court deciding not democracy v. court.

  3. I read that the UCC is suing a state (that I can’t remember right now) for banning same-sex marriage, since it violates their religious freedom to allow all to marry. I’m really interested to see how that goes, since these states so often say the ban is a protection for religious freedom…What are you going to do now, government? HA! We are well on our way to achieving equality everywhere!

  4. My guess is that behind the scenes politics of the court were exceedingly interesting on this one. The four most liberal justices (Thomas, Alito, Scalia, and Roberts) likely would have voted to take the cases if they thought they had the votes to rule against marriage equality, but they don’t, so they would’ve been no votes. What would be interesting to me would be to know how Kennedy voted. Gay rights have kind of become his signature issue, and he is highly aware of his legacy on the subject. The Notorious RBG recently stated that she doesn’t shy away from the issue. So, my guess is that Kennedy and Ginsburg would’ve voted to take the cases. But they need two more votes to actually grant cert to the cases. So that means that at least two of the other “liberal” justices voted against taking the cases. Which doesn’t make sense to me.

    But then again maybe the Justices are predicting that an actual circuit split will arise by the spring term, which gives them a better posture to rule on the case from.

    Either way, 11 more states will have marriage equality as a result of this decision. It’s not perfect. And it’s not near good enough. But I’m still looking at it as a good thing. Especially if, for whatever reason, Justice Kennedy isn’t actually ready to take this step yet. Because the worst outcome would be them taking the case and then voting against it. It sucks that our rights rest on the shoulders of one old white dude, but that’s just the way it is right now, at least when it comes to SCOTUS. But I guarantee you that before Kennedy leaves the bench, we’ll have marriage equality.

    • Another reason the justices may not have granted cert is the broad agreement amongst the circuit rulings in the five cases. Often, ‘controversial’ social issues will not be taken up by the court until there is a conflict between two different circuit court rulings. There is (unfortunately for us), an incentive for the courts to avoid making contentious, partisan rulings that will fall out 5-4 unless they have to, because the courts have neither the power of the purse (legislative) nor the sword (executive). So in order for their decisions to hold weight, they must take care to ensure a decision is viewed as legitimate.

      The founding fathers, for better or worse, gave us a court that is the weakest of the three branches, pratically speaking. The court ends up having to do a lot of work behind the scenes to maintain a their credibility, and given how partisan things are in the other two branches, it makes sense that they might avoid doing things similar to the actions that have lead to Congress’s historically low approval ratings. The last couple sessions of the court have included remarkably narrow rulings with convoluted justifications, which I attribute to an unwillingness to create major new precendent in a politically tense and difficult atmosphere (and who’s fault is that? Oh hey, Citizens United…).

      • Yeah, I definitely agree that a desire for legitimacy is playing a major role in their decisions nowadays. Even just this past term, there was a huge number of cases issued unanimously or nearly unanimously, even on some major issues like the abortion buffer zone case. I think Roberts is pushing like crazy behind the scenes to increase public perception of the Court post-Citizens United.

  5. While I’m frustrated and disappointed that marriage is not being addressed at the national level, I’m relieved beyond measure that the issue is finally settled in my home state of Wisconsin.

    This will make a big difference for me and a lot of people in my life!

    • Yeah, but that will be very quickly appealed to the Circuit Court that already ruled in favour of marriage equality. The Circuit Court will have to overrule the ban. The AG may ignore that, but that could lead to SCOTUS taking up the case next term if the state government refuses to fall in line with the Circuit Court’s orders.

  6. There is still one circuit court that hasn’t ruled: the 6th circuit. A few weeks ago RBG said that SCOTUS wouldn’t pick up a marriage case unless there was a disagreement. The 9th, 10th,4th, and 7th circuits all ruled in favor of marriage equality, each of them citing US v Windsor. The uniformity of legal interpretation does not necessitate SCOTUS involvement. If, however, the 6th Circuit upholds the bans in the 5 cases it is hearing (as many expect the circuit to do), then SCOTUS will be much more likely to hear one or all of those appeals, as the ruling would be the first to break with current legal trend and interpretation.

  7. I’m happy that marriage equality is being determined on a state-by-state basis. Nearly everyone in my family is a Republican, and they are quick to complain about federal laws that they think should be left to the state or local governments. If Obama signed a federal statute legalizing gay marriage, they would complain about “Washington socialist big government overreach” at every family function for the rest of time. This way, they have no legitimate reason to whine :D

    And I don’t think that the discrimination we gays are experiencing is all that similar to what black people endured under Jim Crow. This is just a different issue and a different time, and I think that in this case a big sweeping national statute is not necessary.

    • Yea, Jim Crow laws were never going to get thrown out without a sweeping federal lawsuit. Public opinion is on our side the last couple of months have proven that we can get marriage state by state or circuit by circuit.

      I’d like the supreme court to give sweeping decision against conversion therapy.

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