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October 06, 2014

SCOTUS Makes A Mistake Of Constitutional Proportion In Decision Not To Rule On Gay Marriage

By refusing to take up any of the gay marriage cases that were brought to it on appeal.

The Supreme Court on Monday decided to let stand rulings that allow same-sex marriage in Virginia, Utah, Oklahoma, Indiana and Wisconsin, a surprising move that may clear the way for the expansion of such unions throughout the nation.

The courtís decision came without explanation and puts off a ruling about the constitutionality of gay marriage that would apply to all 50 states. But it sent a clear signal that a majority of the court did not feel the need to overturn lower court decisions that found state prohibitions were unconstitutional.

The decision will likely expand same-sex marriages to other states covered by the federal appeals courts that already have ruled that the bans are unconstitutional, including Colorado, Wyoming, Kansas, West Virginia, North Carolina and South Carolina. That would bring to 30 the number of states where gays can marry.

Marriages that had been on hold in the five states that were before the court began taking place a few hours later.

Now I will concede that I am an opponent of legalizing same sex marriage for a variety of reasons -- not the least of which being the near unanimity with which the American people have spoken whenever they have been given the opportunity to weigh in on the issue at the ballot box. But even if I were a supporter of homosexual nuptials, I would still be angry with the justices over their failure to hear oral arguments in even one of these cases and to issue a definitive ruling on the question of same sex marriage. Why? Because today's action leaves us without guidance on the question from the nation's highest court.

The New York Times gets right to the heart of the problem with today's move.

In a move that may signal the inevitability of a nationwide right to same-sex marriage, the Supreme Court on Monday let stand appeals court rulings allowing such unions in five states.

The development, a major surprise, cleared the way for same-sex marriages in Indiana, Oklahoma, Utah, Virginia and Wisconsin. Officials in Virginia announced that marriages would start at 1 p.m. on Monday.

The decision to let the appeals court rulings stand, which came without explanation in a series of brief orders, will almost immediately increase the number of states allowing same-sex marriage from 19 to 24, along with the District of Columbia. The impact of the move will in short order be even broader.

Mondayís orders let stand decisions from three federal appeals courts with jurisdiction over six other states that ban same-sex marriage: Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming. Those appeals courts will almost certainly follow their own precedents to strike down those additional bans as well, meaning the number of states with same-sex marriage should soon climb to 30.

By failing to act, the Supreme Court has allowed lower courts to impose gay marriage on a number of states and will lead to its extension to still others by judicial decree in coming weeks. Couples will marry in those states -- indeed, they already have -- and those marriages will be unquestionably legal in those states. As noted by Professor Carl Tobias of the University of Richmond School of Law, this non-decision may effectively be the decision on the matter.

"It's all tea leaves," Tobias said. "Even if the 6th Circuit upholds the ban on same-sex marriage I don't see the Supreme Court taking the case and affirming it."

Tobias said he doubts the Supreme Court wants to trigger the chaos that would ensue if they were to rule against the legality of same-sex marriage. Hundreds of valid gay marriages have already been held, and thousands more will be held in the coming days in response to the Supreme Court's lack of action today, Tobias said.

"I don't see how you un-ring the bell," Tobias said. "That's not how it happens. I just don't think the Supreme Court would want to create that legal morass of having to go back and undo tens of thousands of gay marriages."

I think he is exactly right. I don't think that there would be five votes to forcibly divorce thousands -- perhaps even tens of thousands -- of couples nationwide or to allow for states to refuse to recognize marriages that were validly performed and licensed by the states.

Why do I think this outcome came about? Not because of judicial activism, but because of judicial cowardice. Everyone expected this matter to ultimately come down to the vote of Justice Kennedy, and I would suspect that the uncertainty about how he would rule led to a conscious decision by his fellow justices not to grant certiorari. The justices opposed to gay marriage did not want to risk an expansive decision not anchored in the text of the Constitution and so demurred, while the four who would have supported such a decision refrained from voting to hear these cases because the risked losing if they did so while effectively gaining victory by ensuring the case was not heard. That none of the conservative stalwarts on the Supreme Court dissented from the denial of certiorari is particularly disappointing, for this situation serves to embolden those who object to preserving the traditional definition of marriage.

Thus marriage as it has been understood in the Western tradition dies without a whimper in the United States -- and the battle for the legal recognition of polyamorous marriage under the Fourteenth Amendment to the Constitution will no doubt be aggressively joined in the near future. Expect the supporters of this practice to be successful in a dozen years or so.





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Comments on SCOTUS Makes A Mistake Of Constitutional Proportion In Decision Not To Rule On Gay Marriage

Whether to allow gay marriage is a social / cultural issue, it is not a legal issue for the courts. No one can possibly argue that the people who voted for the Equal Protection Clause intended it to extended to homosexuals in general, let alone to a right to homosexual marriage. This is simply judges deciding to impose their will, and doing so extra constitutionally. Behind Roe v. Wade, this is exhibit No. 2 for why we need court reform and to remove from the Surpreme Court the final say as to Constitutional law.

|| Posted by GW, October 9, 2014 10:25 AM ||
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