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.