Love and Marriage…Even in Indiana

Talk about a surprise! Yesterday, the Supreme Court refused to hear any of the appeals of lower court same-sex marriage rulings. There were seven of them, and in all seven,  both sides had urged the Court to grant review — a rare occurrence and, as a Scotusblog post noted, one that almost never fails to assure review.

So–what are the consequences of the Court’s decision not to decide? Per Scotusblog again:

First, as a direct result of Monday’s action, same-sex marriages can occur when existing lower-court rulings against state bans go into effect in Virginia in the Fourth Circuit, Indiana and Wisconsin in the Seventh Circuit, and Oklahoma and Utah in the Tenth Circuit.

Second, such marriages can occur when the court of appeals rulings are implemented in federal district courts in three more states in the Fourth Circuit (North and South Carolina and West Virginia) and in three more states in the Tenth Circuit (Colorado, Kansas, and Wyoming).  The other states in the three circuits where bans have been struck down had already permitted same-sex marriage, under new laws or court rulings (Illinois, Maryland, and New Mexico, which have been counted among the nineteen states in that category).

Third, four other circuits — the Fifth, Sixth, Ninth, and Eleventh — are currently considering the constitutionality of same-sex marriages.  Of those, the Ninth Circuit — which had earlier struck down California’s famous “Proposition 8″ ban and uses a very rigorous test of laws against gay equality — is considered most likely to strike down state bans.  If that happens, it would add five more states to the marriages-allowed column (Alaska, Arizona, Idaho, Montana, and Nevada), which would bring the national total to thirty-five.

With thirty or more states recognizing same-sex marriages, the odds of the Court weighing in at some future time to uphold bans–to reverse the “facts on the ground”–is somewhere between nil and never.  We may never know what led to yesterday’s decision to abstain, but it was one of those times when not deciding is deciding.

Perhaps the conservatives on the Court preferred slowing the inevitable to issuing an opinion that would almost certainly have been pro-equality.

Even Micah Clark, Indiana’s pre-eminent culture warrior, conceded the inevitable; the Star quoted him as saying that  “socially conservative” advocacy groups will now focus their efforts on legislation intended to “protect churches, nonprofit groups, and businesses that deny services to gay couples on religious grounds.”

Since churches and most religious nonprofits are already “protected” by the Free Exercise Clause of the First Amendment–something social conservatives seem to have trouble grasping–I assume Clark and his ilk will mostly try to “protect” merchants who want to discriminate against LGBT folks. That didn’t work for white southerners whose “religious beliefs” precluded offering services to black people, and it isn’t likely to work here, either.

Yesterday, love and real family values won a big one.


  1. Yesterday, on the WISH TV Channel 8, 5:00 p.m. news, the reporter stated that the majority of Indiana residents are against same-sex marriage. Where do they get these statistics regarding “facts”? A friend told me years ago that I could find statistics to prove anything I wanted if I just know where to look. At that time I was his Administrative Assistant working with 2 City contracts regarding local teenage issues; he sent me to the State House to get information on a legislative proposal to allow 14 year-olds to drop out of school without parental consent. Fortunately, wiser minds prevailed. So many issues are reported as “the majority of Indiana residents” or “the majority of Americans”; no one has ever asked my opinion on any of these issues. How can I speak out to become part of these statistics? After all that, let me say – I applaud the SCOTUS decision to ignore this narrow-minded, pseudo religious based denial of civil and human rights and am waiting for wedding invitations from some of my friends:)

  2. The Reactionary Right has been defeated head on. The Reactionary Right will now attempt to inflict “Death by a Thousand Cuts” by trying to inhibit any way possible to permit Same Sex Marriage, or Same Sex Civil Unions. We have seen these tactics with Creation Science, Intelligent Design, and various attempts to limit a Woman’s Choice.

  3. Now can the state reclaim all that tax money Greg Zoeller spent fighting marriage equality? Maybe from his salary?

  4. Per NPR morning news, Mr Clark is insisting that this ruling will violate the first amendment.

  5. I am so flippin’ excited. As you said this is a great example of when not doing something is in fact DOING SOMETHING!!!! I can’t wait to talk to my students about that fact- rhetorically and otherwise. It was kind of underwhelming too when you think of how this very “inaction” was preceded by no major public demonstration (e.g., occupation of a government facility, public march, etc.). BUT none-the-less, I am so excited for our state and so many others. Bring on the death by a million cuts, our civil liberties will prevail.

  6. I take issue with the speculation that the decision to NOT grant the petitions to consider the cases was exclusively from the Conservative-wing. As I understand it, it takes just 4 votes to grant Cert. Kennedy would likely have been the 5th vote to affirm the decisions had they granted Cert. While I suspect the self-describd Conservatives on the Court did not wish to see a pro-Equality decision, the “liberals” on the Court had sufficient numbers to grant Cert had they wished to do so. I think this is more likely the entire court seeing what happened after Roe v Wade, seeing that the Country is already developing a consensus on this issue, and realizing that they did not want/need to weigh in… After all, there is NO circuit court split on this issue (aside from the legal theory supporting the decisions) … While I’d love to see a Supreme Court decision on this, I prefer their inaction yesterday to a 5-4 decision with hateful bigotry in a dissent from the Right-Wingers.

  7. In the bad old days, the Tea Party usurped the word and concept of freedom as something inherently conservative. Of course it was a big lie, yet, somehow, they got away with it. Just as they got away with the concept that being conservative was somehow being more fiscally responsible. And more respectful of our history. And closer to God. And more beneficial in government and business.

    All lies as evidenced by actual results from applying conservatism in real business and politics since the Tea Party. (Either one actually.)

    Evidence reveals the rot at its core. It’s really about favoring those claiming it with more freedom, more economic advantage, more justice, more power, more guns, more heaven than the rest of us.

    It’s oligarchy bait and some fish are overwhelmingly attracted to it. Those who haven’t accepted the reality of it by now are probably incapable of ever accepting it.

    Let them go. We can vote, consume and invest around them. That’s the beauty of democracy.

  8. Prof. Kennedy claims a jaundiced view of the world but I own the cynical corner. And from that POV, SCOTUS clearly took the road that would result in the least harm to Republicans in the Nov election, especially with the critical Senate majority on the line, and even slipping away in some polls (none of which I believe anyway – thank you Ms. Green). By refusing to review the 7 appeals in spite of overwhelming precedent to do so, SCOTUS gave many conservative Republican stalwarts political cover to mumble under their breath that the issue is settled and that they did everything humanely and even divinely possible to stop the slide of our nation into the moral abyss of secular humanism. And in at least one case so far, it has given the FAR-right-right the ammunition to serve up more red meat to their bases.

  9. More progress has been in the last 3 years than in all the rest of time. It seems too swift and good to be true, but it’s a thrilling and historic whiplash moment.

  10. Daleb, just how much do you think Greg Zoeller earns from this state per year? Taking what he has wasted from his salary would be longer than the civilization will last. Nobody lives that long.

  11. Paul would be so happy just like my mom said. Also, do these close-minded, full of hot air, ignorant people ever think that….besides having access to all legal rights like everyone else… in same sex marriages….many times there also children involved who need and would greatly benefit from this civil RIGHT!!!! What right does anyone have to decide how another individual should live…..oh yeah…….the ignorant, fearful, pea-brained, brown-nosed, power- hungry, control freak, hateful neanderthals that we have to deal with. I call that HELL. IT’S ABOUT TIME!!!!! Lets think about the environment and other pressing issues that will bring all of us together to make the world a better place. And, as I have written in the past……. if you think I’m a flower child – I really don’t give a r— a—-.

  12. I was not terribly surprised by the Supreme Court’s decision not to take up the cases. It takes four justices to vote to hear a case. The four who would be, in my estimation, most likely to want to reverse the lower courts (Roberts, Thomas, Scalia, and Alito) probably felt they would not be able to pick up a fifth vote they would need to reverse. The remaining five (four of whom were probably certain votes to uphold the lower courts) may have felt Kennedy was not a sure thing. Or maybe they felt there is simply no need to get involved.

    As I told some folks this week, it is possible that with a change in the Court’s makeup, at some point in the future the Court could try to weigh in. I think it would be hard for the Court to do so as the wave continues to move forward, but anything is possible.

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