SCOTUS Advances Same-Sex ‘Marriage’

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.”

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.”

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 other states — Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming — that fall under the jurisdiction of the three appeals courts.

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.

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.

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.

The Associated Press reported that the 9th U.S. Circuit Court of Appeals struck down sex-same “marriage” bans in Idaho and Nevada on Oct. 7; the ruling said equal-protection rights were violated by the bans. Idaho appealed the 9th Circuit decision, and Supreme Court Justice Kennedy issued a temporary stay, which prevents same-sex couples from obtaining licenses in both states. 

At press time, state officials in Kansas, Wyoming and South Carolina said they would enforce state laws banning the practice.

“The people have spoken on this,” said Kansas Gov. Sam Brownback, who noted that Kansans had approved language in the state Constitution that defined marriage as “the union of a man and a woman.”
Religious-Liberty Concerns
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 Woman: A Defense, expressed dismay that same-sex “marriage” may 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 was waiting for the outcome of 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.

Anderson added that 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.

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 bishops’ statement.

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.

They said, “This is a time when marriage needs to be strengthened, not redefined.”