The US Supreme Court kicked the can down the road on Monday, refusing to hear appeals on overturned gay marriage bans from no fewer than five states. In the short term, that’s good news for the people of Virginia, Oklahoma, Wisconsin, Indiana and, with delicious irony, Utah (which, through the Mormon Church, has become an exporter of anti-gay bigotry to the country and the world), where gay marriage has resumed. And it’s good news for people in 11 other states under the jurisdiction of US Circuit Courts of Appeal that have struck gay marriage bans down. All told, the Court’s denial should make gay marriage legal in 30 of 50 US states, plus DC. But one should be careful in interpreting the significance of the Court’s (non)move.
Imminently and ominously, a decision on another gay marriage ban is expected from the 6th Circuit. In Cincinnati, a three judge panel comprised by two Republican appointees and one Democrat may be the first to uphold such a ban. It’s possible that the Supreme Court’s conservatives are waiting on such a decision before taking up the issue.
CJ Roberts has been occasionally cautious in his activism. Though his Court issued extremist decisions on the Second Amendment and campaign finance, its decision upholding the ACA, which Roberts himself penned, suggests an upper limit to his audacity. If every US Circuit Court strikes down bans on gay marriage – and to date, every Circuit Court faced with the issue has done so – a Supreme Court decision going the other way would be conspicuously activist. But if just one Circuit Court upholds a ban, the Supreme Court would be expected to step in, in its traditional role of resolving differences among the Circuits.
Given that it takes four votes for the Supreme Court to take a case, it’s reasonable to speculate that at least two of the Court’s five conservatives would prefer to postpone their decision for the time being – perhaps until one Circuit Court provides them with a fig leaf for their activism. As for the Court’s four liberals, while they might relish the opportunity to strike down gay marriage bans nationwide, once and for all, they may be concerned about securing a fifth vote (which would come most likely from Justice Kennedy), and in the meantime can watch and wait as gay marriage spreads across the US without their assistance.
Judge Martha Craig Daughtrey, the sole Democratic appointee on the the three-judge panel hearing the Cincinnati case, alluded to the women’s suffrage movement during oral argument. Responding to the suggestion of Ohio’s solicitor general that gay marriage activists should focus their efforts on the political process and state legislatures, instead of on federal courts, Judge Daughtrey noted that nearly a century of politicking failed to secure the right to vote to all women; that in the end, via the 19th amendment, three-fourths of the states forced a recalcitrant one-fourth who remained opposed. Daughtrey might also have pointed out that 45 years elapsed between the Supreme Court’s 1875 rejection of a woman’s Constitutional right to vote, and the19th amendment’s 1920 ratification. To gain some insight on the pace of progress across the nation’s backwards belt, consider that Georgia, North Carolina, South Carolina and Louisiana didnt ratify till after 1970; and Mississippi, in Orwellian fashion, only did so in 1984.
Unfortunately, the time for gay marriage in all 50 states may not be now. It may not even be soon. Though a string of recent court victories are cause for hope – and over the long haul its coming seems inexorable – this issue will only be resolved at the highest level. One hopes that this Supreme Court will delay justice no longer, and put an end to these unjust, unconscionable, indefensible bans.