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A lot of buzz has been going around about the Supreme Court allowing gay marriage in most states. First, the Supreme Court of the United States (SCOTUS) did not rule gay marriage was legal in the United States. Below is a nuts and bolts explanation about what SCOTUS has recently done concerning the legality of gay marriage.
How the Matter Arose
Throughout the late 90s and early 2000s, many states banned gay marriage in several ways. The most common of these ways was to amend their own state constitutions to explicitly limit civil marriage to one man and one woman, gender being designated by a person’s gender at birth (therefor preventing transgender persons from marrying as a sex they were not medically born as). However, the United States Constitution in Article 6 Clause 2 establishes the United States Constitution as “the supreme law of the land.” In other words state laws and even their own constitutions cannot trump the US Constitution. It is a reality states must accept to be granted statehood. The United States Constitution, through the Fourteenth Amendment that was adopted shortly after the Civil War in an attempt to prevent discrimination (most notably racial discrimination following the end of slavery), prohibits states from denying any person within its jurisdiction “the equal protection of the laws.” Many homosexual couples in the states whose constitutions prohibited gay marriage believed that those states’ denial of their right to marry, and its associated state-sponsored benefits, saw these prohibitions as a violation of their 14th Amendment rights, and therefore sued in federal court.[For a detailed outline of the legal arguments made in the cases at issue, and a more detailed timeline of events, see this past article.]
Why so many Lawsuits Now?
The storm of federal suits against alleged same-sex discrimination stems out of two SCOTUS decisions, Windsor and Perry (for an in-depth description of these cases, see this past article). Last year the Supreme Court struck down key portions of the Defense of Marriage Act (Windsor) and simultaneously upheld a California Supreme Court decision that overturned an amendment to the California Constitution prohibiting same-sex marriage (Perry). In Windsor, the Court ruled that DOMA discriminates against same-sex couples, and that the 5th Amendment Due Process Clause (which applies only to the Federal Government) prohibits such discrimination. In Perry, the Supreme Court upheld the California Supreme Court’s ruling that the 14th Amendment (which applies to the states) prohibits same-sex discrimination, but did so on standing grounds (i.e. the plaintiffs did not have standing to appeal the case in the first place, so SCOTUS could not rule on the merits of the case). To put it in colloquial terms, SCOTUS punted the issue.
What did SCOTUS do?
On October 6th, 2014 SCOTUS denied certiorari (review) of seven cases from five states (Indiana, Wisconsin, Utah, Virginia, and Oklahoma) in three circuits (Fourth, Seventh, and Tenth). In all seven of those cases the lower federal district court judge had ruled those states’ denial of civil marriage to homosexual couples violated those persons’ right to equal protection as provided by the Fourteenth Amendment. In all seven cases the defendant states appealed the ruling, and in every case the respective circuit court upheld the lower court’s decision. Each defendant state then appealed the circuit ruling to the Supreme Court.
SCOTUS is a court with ultimate and mostly discretionary authority. To over-simplify the process, when a case is appealed to SCOTUS, four of the nine justices on the Court must vote to allow the case to be heard. In this case, the court unanimously chose not to hear the appeals, making the circuit rulings binding and unappealable. What this ultimately means is that the constitutionality of those states’ prohibitions are now ruled by the circuit courts’ judgment, what we in the profession call “good law” (good meaning valid, not necessarily correct or favorable). Practically, this means that same-sex marriage is now legal in every state within the Fourth, Seventh, and Tenth circuits’ jurisdictions, bringing the total of states granting same sex marriages to 31.
What did SCOTUS not do?
SCOTUS did not rule on the constitutional merits or lack thereof regarding same sex marriage prohibition. Same-sex marriage is still illegal in 19 states, and same-sex marriage lawsuits are still pending in each of those states and some of their circuits. A couple of the more conservative circuits have not yet ruled on the issue, but to-date (to this author’s knowledge) no federal court has upheld a Fourteenth Amendment challenge to same-sex marriage prohibitions in this most recent wave of litigation. Some in the legal profession believe the conservative side of SCOTUS is waiting for a conservative circuit ruling to bolster their arguments. Others believe SCOTUS wants more decisions so that their ultimate ruling (that would obviously be hugely controversial no matter how they rule) will be more legally sound. Still others think the high court just wants to phase the country into the idea of universally allowed same sex marriage. No one is quite sure. What is sure is that those in the legal community, no matter what their opinion on the issue, are very excited to see how the Supreme Court will ultimately decide to handle the question of same-sex marriage. To legal scholars, this is like being 80% sure but not certain that another Harry Potter book is going to come out. We don’t know if we are going to love it or hate it, but not knowing even if it is going to exist is excruciating.