WASHINGTON — In a stunning and unexpected blow to Americans who oppose changes in the nation’s marriage laws, on Oct. 6, the U.S. Supreme Court let stand appellate rulings in favor of same-sex “marriage,” thus dimming hopes that state bans on the practice could survive an increasing hostile legal environment.
Experts say that the justices’ decision to deny appeals by five states — Indiana, Oklahoma, Utah, Virginia and Wisconsin — means that a total of 24 states and the District of Columbia now permit same-sex couples to legally marry. Further, the high-court decision, which offered no additional clarification, is expected to pave the way for “marriage equality” in six additional states — Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming — that fall under the jurisdiction of the three appeals courts.
[UPDATE 10/8: On Oct. 7, the Ninth Circuit responded to the news by striking down state bans in Idaho and Nevada. However, Idaho petitioned the Supreme Court to review the decision, and Justice Anthony Kennedy issued a temporary stay that will prevent same-sex couples from obtaining licenses in Idaho and Nevada.
Meanwhile, state officials in Kansas, Wyoming, and South Carolina said they would enforce state law barring the practice.
"The people have spoken on this," said Kansas Governor Sam Brownback, who noted that voters had approved language in the state constitution that defined marriage as "the union of a man and a woman."]
The U.S. Conference of Catholic Bishops reacted with dismay to the news.
“Millions of Americans had looked to the court with hope, that these unjust judicial decisions might be reversed,” noted a statement issued by Bishop Richard Malone of Buffalo, N.Y., and Archbishop Salvatore Cordileone of San Francisco, chairmen respectively of the U.S. bishops’ Committee on Laity, Marriage, Family Life and Youth and the Subcommittee for the Promotion and Defense of Marriage.
“The Supreme Court’s action fails to resolve immediately the injustice of marriage redefinition and, therefore, should be of grave concern to our entire nation,” read the statement from Bishop Malone and Archbishop Cordileone.
The reaction of legal experts suggested that the court’s decision was a major setback for states that had vigorously defended laws defining marriage as a union of one man and one woman and for voters who had expressed their will during state referendums on this issue.
“This is not good news. Today’s announcement means that almost certainly the court will not hear a same-sex ‘marriage’ case during its current term, which will end next June 30 or so,” Gerard Bradley, an expert on the Constitution at the University of Notre Dame's law school, told the Register.
Short-Term and Long-Term Effects
The short-term effect of the decision, said Bradley, “is to terminate same-sex ‘marriage’ litigation in several states, Indiana, Wisconsin, Utah, Oklahoma and Virginia among them.” Lower-court decisions in favor of “marriage equality” that had been stayed pending appeals to the high court will immediately go into effect.
Further, while the justices could have future surprises in store as they continue to address litigation related to this question, Bradley suggested that the long-term impact of the decision also looks bleak for Americans who oppose any redefinition of marriage.
“For all practical purposes, today’s announcement is probably the permanent introduction of same-sex ‘marriage’ into several states, which, yesterday, retained the legal authority to act otherwise and to protect real marriage for their citizens,” he predicted, noting that the sheer number of same-sex couples likely to take advantage of the change in state marriage laws would make it difficult to reverse course.
Until Oct. 6, most constitutional scholars believed the justices were likely to hear one or more state appeals to lower-court decisions that overturned bans on “marriage equality.” Few experts predicted that the court would allow the appellate decisions to stand.
Why Did It Happen?
The surprising decision led many court watchers to speculate on which of the court’s “conservative” justices — Samuel Alito, John Roberts, Antonin Scalia and Clarence Thomas — voted with the liberal wing. Just four votes are needed for the high court to approve an appeal, and that means one or more of those justices sided with the court’s liberal wing to let the appellate rulings stand.
Ed Whelan, who blogs at National Review’s Bench Memos, echoed the astonishment and sense of betrayal experienced by many opponents of same-sex “marriage,” who had been critical of the court’s split decision last year in United States v. Windsor, which struck down part of the federal Defense of Marriage Act (DOMA).
In Windsor, the court found that a law defining marriage as a union of one man and one woman violated constitutional protections of due process and equal protection. Writing for the majority, Justice Anthony Kennedy, the high court’s closely watched swing vote, sharply attacked U.S. lawmakers for passing a law that, in his judgment, expressed an irrational animus toward persons with same-sex attraction.
“Given how poorly reasoned the Supreme Court’s anti-DOMA decision was, I haven’t harbored any particular hope for how the court would decide the marriage cases from the states,” said Whelan in an Oct. 6 post.
“But the court’s denial of review in all the pending cases strikes me as grossly irresponsible, as a huge abdication of duty on the part of at least six justices.”
Yet, as Whelan mulled over the justices’ decision, his additional posts reflected a modest reassessment of the justices’ reasoning.
Whelan speculated that a conservative justice might have voted against review if he knew that Justice Kennedy would rule in favor of marriage equality.
In that case, said Whelan, denying a review now “minimizes the near-term damage and leaves open the slender possibility that a court with slightly altered membership might in the not-so-distant future refrain from inventing a national same-sex 'marriage' right,” he suggested.
As Catholic leaders and other experts on marriage took stock of the cascading effect of the high court’s decision, Ryan Anderson, the co-author of What Is Marriage? Man and Women: A Defense, expressed dismay that same-sex “marriage” will soon be legal in 30 states. However, he argued, the justices still have not grappled with two crucial points: “what marriage is and who has the right to define it.”
Anderson acknowledged that many Americans will be disheartened by the news. But he emphasized that a decision from the court imposing marriage equality across the land would be worse.
“Most likely, we will not have a Roe v. Wade marriage decision in this term. That is the one good thing,” he told the Register.
Anderson is waiting for the outcome of two other pending circuit-court marriage cases that could create a split at the appellate level, a development that could lead the justices to decide the issue. But for now, he said, the religious liberty of individuals and institutions that resist changes to state marriage laws will become a more pressing concern.
“We need to make sure that the government does not coerce or penalize any citizen or institutions that continue to speak the truth about marriage,” he said, expressing support for legislation introduced in Congress that would provide such protections.
Archbishop Paul Coakley of Oklahoma City voiced similar concerns in an email message to the Register.
“It will take some time to sort out the inevitable consequences this will have for our Catholic institutions and others with objections based on their religious convictions,” said Archbishop Coakley.
Further the Oklahoma City archbishop expressed concern for the broader consequences of same-sex “marriage” for society: “There is far too little consideration of the long-term effects of this social experiment on the good and well-being of the children brought into these households and its effect on subsequent generations.”
Archbishop Cordileone and Bishop Malone, in their response to the court’s decision, emphasized that the Catholic Church and its institutions could not accommodate a redefinition of marriage.
“Upholding the inviolable dignity of every human person is a duty for all, and this duty entails the defense of the unique meaning of marriage as between one man and one woman,” read the statement issued by Bishop Malone and Archbishop Cordileone.
Part of a Bigger Battle
As the extraordinary synod began its deliberations on the pastoral challenges that confront modern marriages, the USCCB statement signaled that the bishops view the legal fight to counter same-sex “marriage” as just one element of a larger effort to shore up an embattled but vital institution.
“Globally, we are at a time of recognizing the decisive importance of marriage and the family when it comes to addressing challenges of poverty and serving the good of all,” said Bishop Malone and Archbishop Cordileone.
“This is a time when marriage needs to be strengthened, not redefined,” they continued.
“Our young people need encouragement to embrace the gift and responsibility of marriage as it truly is — a permanent, faithful and fruitful gift of self between a man and a woman.”
Joan Frawley Desmond is the Register’s senior editor.