Issue:  Vol. 48 / No. 3 / 18 January 2018

Online Extra: Supreme Court denies 7 appeals in 5 states


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In a surprise development, the U.S. Supreme Court Monday announced it would not accept for review any of the seven appeals on same-sex marriage bans from five states – Virginia, Wisconsin, Indiana, Oklahoma, and Utah.

The action means that the stays placed on lower court decisions in all five states –decisions that struck down bans on marriage for same-sex couples – are immediately lifted, making way for the lower courts to issue orders requiring the states to stop enforcing their bans.

The action also means that six other states in the same federal circuits as the five states which had appeals before the high court will have to abide by the federal appeals court rulings in those circuits. All three circuits – the 4th, 7th, and 10th – struck down the bans on marriage for same-sex couples.

That means that very soon, same-sex couples will likely be able to marry in 30 states plus the District of Columbia, tipping the balance in favor of marriage equality, from the previous 19 states and the District of Columbia.

The Salt Lake Tribune reported that the 10th Circuit issued an order just minutes after the Supreme Court's announcement was made public, lifting the stay in that state and alerting clerks in Utah that they should immediately abide by its ruling that the ban is unconstitutional. Colorado Attorney General John Suthers implied the Supreme Court announcement denying review of the cases was tantamount to a ruling.

"We have consistently maintained that we will abide by the Supreme Court's determination on the constitutionality of marriage laws," said Suthers in a news release. "By choosing not to take up the matter, the court has left the 10th Circuit ruling in place." He said Colorado clerks "must begin issuing marriage licenses to all same-sex couples" soon after the Tenth Circuit issued its order.

Attorneys for the same-sex couples involved in the Utah litigation were ecstatic.

"We are thrilled the court is letting the 10th Circuit victory stand," said Shannon Minter, legal director for the National Center for Lesbian Rights, which has been involved in the 10th U.S. Circuit Court of Appeals case out of Utah, Herbert v. Kitchen. "This is a huge step forward for Utah and the entire country. We are hopeful that the other cases pending across the country will also vindicate the freedom to marry, so that all couples, no matter where they travel or live, will be treated as equal citizens and have the same basic security and protections for their families that other Americans enjoy."

In Wisconsin, Republican Governor Scott Walker told reporters on his re-election campaign trail that the issue is "resolved" and there would be no further attempts to defend the state ban; Dane County announced it would issue licenses to same-sex couples immediately.

The Indiana attorney general posted a statement indicating the state would begin issuing licenses soon.

The announcement does not legally affect the remaining 20 states, but it could give courts in those other states and circuits some pause before upholding similar bans in those states and circuits. Some experts say they expect the Supreme Court will almost certainly take up an appeal should a federal appeals court rule such bans to be constitutional.

Prominent constitutional law scholar Laurence Tribe of Harvard University, who argued against bans on sodomy in the 1986 Bowers v. Hardwick case, said he thought there was only a 50-50 chance the court would have granted one of the existing appeals.

"As soon as a solid split emerges, I fully expect the court to grant cert," said Tribe. "I'd watch the 6th Circuit if I were you."

A three-judge panel of the 6th Circuit heard oral arguments August 6 in six marriage equality lawsuits from four states: Kentucky, Michigan, Ohio, and Tennessee. The panel has yet to issue its opinion, but questions from two of the three judges during the argument gave repeated voice to various justifications for the bans.

Prior to Monday's announcement, marriage equality was legal in 19 states plus the District of Columbia. Under this latest action, marriage equality will now be the law in Colorado, Indiana, Kansas, North Carolina, Oklahoma, South Carolina, Utah, Virginia, West Virginia, Wisconsin, and Wyoming.

The 4th Circuit (Virginia, West Virginia, North Carolina, and South Carolina) has indicated it will issue its order mandating that states stop enforcing the bans at 1 p.m. EDT Monday, October 6. Virginia Attorney General Mark Herring, who has opposed that state's ban, issued a press release saying that same-sex couples can begin obtaining marriage licenses as soon as that order is issued.

"Local clerks are receiving guidance and forms necessary to begin performing marriages today," said Herring's office, "and the Attorney General's office is working with the governor's office and state agencies to implement any needed changes in light of this action."

"A new day has dawned, and the rights guaranteed by our Constitution are shining through," Herring stated in the press release Monday morning shortly after the Supreme Court issued its "Orders List" indicating that the seven appeals – including three from Virginia – were being denied.

"This is a tremendous moment in Virginia history," said Herring. "We will continue to fight discrimination wherever we find it, but today, we celebrate a moment when we move closer to fulfilling the promise of equality ignited centuries ago in Virginia, and so central to the American experience."

Jon Davidson, national legal director for Lambda Legal Defense and Education Fund, which is involved in a number of marriage equality cases, agreed that the Supreme Court will likely take a circuit decision from the 6th or 5th circuits if they conflict with the decisions rendered by the 4th, 7th, and 10th circuits. But he said he doesn't think the high court would consider an appeal from a future circuit, such as the 9th, which might agree with the previous circuits.

Davidson said there is a way that the six states in the 4th, 7th, and 10th circuits – that were not part of Monday's batch of seven cases – could try to avoid or delay allowing same-sex couples to marry in those states. He said a state, such as South Carolina, could try and appeal an existing case to the full circuit bench in hopes of getting a different decision than that issued by the circuit's three-judge panel. That seems like a long shot but one that may have political benefits for governors or attorneys general in more conservative states.

Mary Bonauto, civil rights director for Gay and Lesbian Advocates and Defenders, said she thinks the Supreme Court's announcement sends :a powerful signal to the many other courts considering the issue that there is no reason to delay and perpetuate the harms to same-sex couples around the nation."

Bonauto won the landmark case in Massachusetts that led to the first state allowing same-sex couples to marry in 2004; she also led the successful effort to overturn a key provision of the Defense of Marriage Act last year.

"We obviously need to get to a national resolution, so the magic number is 50 states plus," said Bonauto, "not 30."

Gay Senator Tammy Baldwin (D-Wisconsin) called the Supreme Court announcement Monday a "huge victory."

"Love is love, family is family, and discriminating against anyone's love, against anyone's family, is not only wrong, it's unconstitutional," said Baldwin, in a press release. "This is a huge step forward for our entire country being a place where every family's love and commitment can be recognized and respected under the law."

In order to take a case, four justices must agree before the high court grants a petition for appeal. The fact that the justices did not take any of the seven cases means that at least six of the nine justices refused to hear the appeals that sought to determine whether the marriage bans were constitutional. The fact that six justices refused the appeals in these seven cases bodes well for marriage equality should the court later decide to hear an appeal from marriage equality supporters, should another circuit uphold the constitutionality of marriage bans.




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