On Monday, the Supreme Court turned away appeals from five states seeking to ban same-sex marriage, handing equality advocates an enormous victory to mark the start of the Roberts Court term.
The Court released orders denying review in all of the seven marriage equality cases it was considering. This means the lower-court decisions striking down bans in Wisconsin, Oklahoma, Utah, Virginia, and Indiana should go into effect shortly, clearing the way for same-sex marriages in those states as well as any other state with similar bans in those circuits—Colorado, Kansas, Wyoming, North Carolina, South Carolina, and West Virginia.
In total, 30 states and the District of Columbia will recognize marriage equality.
Even though the Supreme Court’s decision Monday is certainly a win for those challenging same-sex marriage bans, it will not spell the end of the marriage equality fight in the courts. Currently, the U.S. Sixth Circuit Court of Appeals is considering cases challenging bans in Kentucky, Michigan, Ohio, and Tennessee, while the Ninth Circuit Court of Appeals heard arguments in September in a challenge to Nevada and Idaho’s bans. A challenge to Texas’ marriage equality ban is crawling though the Fifth Circuit, and the 11th Circuit could hear a case challenging the Florida marriage equality ban this fall.
Roe has collapsed and Texas is in chaos.
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So far, however, no federal appellate court has ruled against marriage equality.
Evan Wolfson, president of Freedom to Marry, applauded the orders but urged the Supreme Court to take up the issue eventually. “The Court’s letting stand these victories means that gay couples will soon share in the freedom to marry in 30 states, representing 60 percent of the American people,” Wolfson said in a statement. “But we are one country, with one Constitution, and the Court’s delay in affirming the freedom to marry nationwide prolongs the patchwork of state-to-state discrimination, and the harms and indignity that the denial of marriage still inflicts on too many couples in too many places.”
Wolfson is correct that without a Supreme Court ruling on the issue, same-sex marriage is a patchwork of rights that obstructs access to some who wish to obtain it. But it’s important to remember that Supreme Court intervention doesn’t guarantee a ruling in favor of marriage equality, no matter how many signals Justices Ruth Bader Ginsburg and Anthony Kennedy may send on the issue. Plus, the decisions from the federal appeals courts have been unequivocal in their support for marriage equality. Frankly, it’s hard to imagine the Roberts Court shutting down supporters of same-sex marriage bans as forcefully as Judge Richard Posner did in the Seventh Circuit’s decision (one of the seven that the Supreme Court declined to take up on Monday).
With no conflicting opinions among the federal appeals circuits on whether states can constitutionally ban same-sex marriages, the Supreme Court may stay out of the marriage equality fight until such a clash emerges. And that could happen soon: The panel of Sixth Circuit judges considering bans in Michigan, Kentucky, Ohio, and Tennessee is conservative. And if the Fifth Circuit starts to move on the Texas challenge soon, it is entirely likely that a conflicting opinion could come from there as well.
Still, marriage equality advocates have won 41 legal challenges to same-sex marriage bans; they have lost only two. That could explain why the Supreme Court refused to intervene in the issue now. From the justices’ perspective, it may be that there is no question for them to answer—that the issue of whether or not our Constitution recognizes marriage equality is largely settled, and it’s just a question of when, not if, the rest of the courts agree.