How SCOTUS could decide on marriage equality in a year and a half

The U.S. Supreme Court on Monday gave another big boost to the fight for same-sex marriage equality in the United States, and it did so by doing nothing. 

In a startling move, the Supreme Court declined to hear any of the same-sex marriage cases brought before it. This means that the decisions of the circuit and district courts below are automatically upheld and become final. This move was followed quickly by the Ninth Circuit striking down the bans in Nevada and Ohio. Thus, same-sex marriage is immediately available in Oklahoma, Utah, Virginia, Wisconsin, Indiana, and Utah.

Alaska, Arizona, North Carolina, South Carolina, Montana, West Virginia, Colorado, Kansas, and Wyoming are all in circuits that have already ruled on the issue, though they are still under a technical ban, because a case was never appealed the relevant circuit court and decided. However, circuit court decisions are based in the United States Constitution, the supreme law of the land, and only the Supreme Court could have overruled them, which it declined to do. Any district court or state court will now have to abide by their decisions and find the same-sex marriage bans unconstitutional and overturn them.

What brought us to this point?

The entire country has been rendered breathless by the speed at which marriage equality has swept the nation following the Supreme Court’s decision in US v. Windsor, which invalidated as unconstitutional section 3 of the Defense of Marriage Act. The opinion, written by Justice Anthony Kennedy, said:

What has been explained to this point should more than suffice to establish that the principle purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.

The language was ringing and powerful, but it did not speak much toward marriage equality for those who weren’t already “in a lawful same-sex marriage.” In fact, Justice Kennedy, famous for writing opinions with powerful rhetoric but surprisingly little meat for lawyers and lawmakers to sink their teeth into, purposefully sidestepped the marriage issue. He would never have gotten a majority vote for Windsor if he had, by judicial fiat, decreed same-sex marriage for all.

Where the road to same-sex marriage equality began is a matter of some debate. George Chauncy wrote a wonderful, column-length treatment of the subject for the New York Times, and easy-to-follow timelines exist at Freedomtomarry.org and The Repository of All Human Knowledge. There are many markers along the way, but Windsor seems to have had the same effect as the introduction of nitrous oxide to a race car engine. Since Windsor, there have been a rash of almost universally pro-same-sex marriage opinions. The only outlier was a decision in Louisiana by District Court Judge Martin Feldman.

Thank you for marriage equality, Justice … Scalia?

Justice Antonin Scalia’s dissent in Windsor is, aside from the majority opinion, the real point of interest (as is often the case when he dissents). Beginning with, “There are many remarkable things about the majority’s merits holding. The first is how rootless and shifting its justifications are,” Section II A of Scalia’s dissent provides an excellent walkthrough of the confusing means by which Kennedy simultaneously invalidated a federal law against same-sex marriage for those already legally in one, and maintained validity for the state laws banning them for those who weren’t. Scalia then goes on in section II B to give us the really juicy stuff:

By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples …

But then, Justice Scalia, prognosticator that he is, has actually been predicting for 11 years now that the courts will have no choice but to strike down bans on same-sex marriage. In his 2003 dissent to Lawrence v. Texas, the case that struck down as unconstitutional laws criminalizing sodomy, Scalia famously wrote:

Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, and if…”[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.

The writing in these opinions is sarcasm and incredulity raised to their highest art forms. However, many of the judges who have decided the same-sex marriage cases post-Windsor have chosen to take Scalia at his word. As Jesse Wegman pointed out in the New York Times Talking Note blog, judges in Virginia, Kentucky, Ohio, and Utah, among others, have chosen to throw Scalia’s words right back at him, as exemplified by Utah Judge Robert Shelby’s opinion:

The court agrees with Justice Scalia’s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.

When will the Supreme Court decide marriage equality?

Maybe never.

What the Supreme Court is waiting for is what is known as a “circuit split.” In other words, it is waiting for evidence of a disagreement among the 11 Federal Circuit Courts of Appeals, which are the second-highest courts in the land when ruling on U.S. Constitutional matters. In a September 16, 2014 question-and-answer session at the University of Minnesota Law School, Justice Ruth Bader Ginsburg — the staunchest liberal lion on the Court — said that there is “no urgency” for the Court to take up the issue, despite the many appeals for it to do so at the time. If the 11 circuits all overturn same-sex marriage bans then there is never a reason for the Supreme Court to intervene.

Why not intervene though? It surely feels urgent to those people in states that still ban them from getting married. It’s important to remember that the Court views itself as a single, long-lived institution, not as individual groups of justices. In the eyes of the Court, it’s the same Court in 2014 that it was in 1860. It is only we outsiders who refer to “The Warren Court” or “The Rehnquist Court” or “The Marshall Court.” And as an institution, the Supreme Court is wary of wading into these issues when we can work them out for ourselves.

Many view Loving v. Virginia as the Supreme Court striking down anti-miscegenation statutes all over the country in a bold victory for interracial marriage. However, historians remember that the Court actually declined to hear several cases challenging those laws in the years leading up to the decision, essentially waiting for a majority of states to be on the pro-marriage side before it swept the last recalcitrant states into line.

The few times that the Court has stuck its neck out too far, too fast, it has suffered greatly, whether or not the decision was viewed as good and just by later generations. As Justice Ginsburg notes, the Supreme Court is still suffering from the loss of credibility it sustained when it decided Roe v. Wade ahead of the wave of public opinion, and may have done irreparable harm to the pro-choice movement. And this is to say nothing of the damage done by the disastrous Bush v. Gore decision. As Justice Stevens wrote in his dissent to that decision, “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

As it stands now, decisions handed down by legislatures, ballot initiatives, various state and district courts, and the Fourth, Seventh, Ninth, and Tenth Circuits, have made same-sex marriage legal and currently (or very soon to be) available in 35 states — Alaska, Arizona, North Carolina, South Carolina, California, Connecticut, Colorado, Delaware, Hawaii, Illinois, Indiana, Idaho, Iowa, New Jersey, New Hampshire, Kansas, Maine, Maryland, Massachusetts, New Mexico, Minnesota, Montana, Nevada, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Virginia, West Virginia, Washington, Wisconsin, Wyoming, and New York — and the District of Columbia.

There are seven states in which same-sex marriage bans have been struck down, but the decisions are stayed until the appeals process is finished: Arkansas, Florida, Idaho, Kentucky, Louisiana, Michigan, and Texas.

Finally, there are 13 states in which same-sex marriage bans are still being litigated in trial courts: Alabama, Alaska, Arizona, North Dakota, South Dakota, Georgia, Mississippi, Missouri, Montana, Nebraska, Nevada, Ohio, and Tennessee.

Where do things go from here? Hopefully failure.

For now, we watch the Fifth, Sixth, Eighth, Ninth, and Eleventh Circuits and hope for a failure. Wait … failure? Yes.

Remember those 13 states with district court-level trials in play. Trials go through a process that can take two to three years, or more, in complicated cases. The time that the people in those states will have to wait is greatly extended if we have to wait for all of those cases to go through, be collected into one appeal by the relevant circuit, and then go through the appellate process, which can itself often take more than a year.

The Sixth Circuit has already heard oral argument over the bans in its jurisdiction, while the Fifth, Eighth, and Eleventh have not (the First, Second, and Third Circuits never had to act as all of those decisions were made at the state level and either never litigated or never appealed).

The remaining circuits are all the most conservative in the country. The Sixth Circuit, comprising Michigan, Ohio, Kentucky, and Tennessee, may well be the one that upholds a same-sex marriage ban and creates the circuit split that the Supreme Court is waiting for. If it doesn’t, the Fifth Circuit, comprising Texas, Louisiana, and Mississippi, almost certainly will. If that happens, then there is another appeal to the Supreme Court.

When that occurs, if it is early enough in this term, the Supreme Court will almost certainly agree to hear the case. Then, it is basically inevitable (it is always dangerous to try to predict what the Supreme Court will do) that it will write a Loving-style opinion and bring the rest of the states in line. In that way, the road to universal same-sex marriage in the United States can potentially be shortened to late June or early July 2015. If the appeal is brought to the Supreme Court too late in the term, it may push it to next term beginning in October 2015, in which case it will probably be decided within the first four or five months of that term.