There is the apparent consensus and resignation that same sex marriage will be the law of the land come the end of this Supreme Court term in June. Already here and elsewhere, the anticipated vitriol has started against the Court and particular Justices. In the end, that rhetoric may very well be accurate. For reasons that will be explained in the next two articles, this may not be the slam dunk for the LGBT community that many are predicting. The Roberts Court has a knack for narrow rulings, or as I call it, “weasling out of cases.”
What concerns many (and rightfully so) is the fact that this Court has refused to grant stays against lower appeals court rulings which struck down gay marriage bans. When these stay requests are forwarded to the Supreme Court, the Justice responsible for that particular Circuit has a few options- (1) they can unilaterally grant the stay, (2) they can deny the stay, or (3) they can refer the request to the entire Court. The reason for granting or not granting a stay are rarely, if ever, stated. The fact that no stays were granted in the majority of cases indicates to many that a majority of the Justices have made up their mind and this is a foregone conclusion.
In fact, we have one of those rare cases of the Supreme Court speaking out regarding the failure to grant a stay- that of Scalia who claimed that the denial was sending a false signal to Circuits that the Court has, in fact, already made up its mind. If that is the case, then the worst fears of the proponents of traditional marriage would be realized. However, as I stated, the reason for granting a stay or not are rarely stated. The Court (or Justice) may just believe that the right constitutional issue is not in question, there may be an infirmity in the request, or some other reasons. In the case to be heard next week, the key may be in the questions presented and to be argued which is whether (1) the 14th Amendment requires a state to grant a marriage license to a same sex couple and (2) does the same apply to such a marriage performed in another state? Hence, we have three constitutional principles simultaneously at play here: (1) Equal Protection, (2) Privileges and Immunities, and (3) federalism.
The fact the second question is presented for argument indicates to me that the Court may be seeking a way around outright endorsement of gay marriage nationally. Of course, it is all moot if they decide the 14th Amendment does require states to recognize and grant marriage licenses to same sex couples. In other words, they have left themselves an “out.” Still, it is quite possible that the third factor- federalism- was absent in all those instances where stays were not granted. If that is the deciding factor, then this should give opponents of gay marriage some hope since the issue of federalism and state’s rights has arisen in similar cases. Also, when you have basically every Circuit deciding that state bans on gay marriage are unconstitutional (albeit for different reasons), there is no reason for the Supreme Court to intervene and they generally will not intervene unless there is a split in the outcome between the Circuits. Thus, when the Sixth Circuit ruled in favor of state bans, that split was finally there giving the Court the opportunity to take the case.
What I find disturbing, however, is that in cases where stays were not granted, the state governments went ahead and started granting marriage licenses to same sex couples. Other states dragged their feet. Regardless, obviously marriages took place and licenses were granted. The problem is: What if the Supreme Court rules that states have a right to define marriage as between a man and a woman only? What happens to those marriages already performed? If Michigan and the other states involved in these cases next week prevail, one can rest assured that in states where the bans were struck down, those bans may return (if the state so decides). This would be a serious disservice to everyone involved and likely create more havoc than if a stay was granted originally.
I am not 100% sure the Supreme Court will rule in favor of gay marriage for reasons to be discussed in the next two entries. There is some guarded optimism on my part. However, a ruling in favor of gay couples would hardly come as a surprise. And while Justice Kennedy is the focal point of the rhetoric and criticism here, there are reasons to hold out some limited hope.