On Monday, a majority of the Supreme Court allowed homosexual marriages to take place in Alabama despite that state joining three others in appealing rulings that have required states to perform and recognize homosexual marriages despite the will of the people. What makes this significant is that is serves as a signal that the upcoming cases on homosexual marriage are pro forma, a farce, a charade designed to let the rubes think they’ve been heard while the big brains on the Supreme Court tell us what is best for us. From Justice Thomas’s dissent, joined by Justice Scalia.
Yet rather than treat like applicants alike, the Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor, 570 U. S. ___ (2013) (slip op., at 25–26). This acquiescence may well be seen as a signal of the Court’s intended resolution of that question. This is not the proper way to discharge our Article III responsibilities. And, it is indecorous for this Court to pretend that it is.
Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States. Over the past few months, the Court has repeatedly denied stays of lower court judgments enjoining the enforcement of state laws on questionable constitutional grounds. See, e.g., Maricopa County v. Lopez-Valenzuela, 574 U. S. ___, ___ (2014) (slip op., at 2) (THOMAS, J., joined by SCALIA, J., respecting denial of application for stay) (collecting cases). It has similarly declined to grant certiorari to review such judgments without any regard for the people who approved those laws in popular referendums or elected the representatives who voted for them. In this case, the Court refuses even to grant a temporary stay when it will resolve the issue at hand in several months.
I respectfully dissent from the denial of this application. I would have shown the people of Alabama the respect they deserve and preserved the status quo while the Court resolves this important constitutional question.
Virtually every time the Supreme Court has stepped into a hot button social issue it has destroyed a measure of its credibility. This will be no exception. In the service of “fairness,” the Court has abrogated it duty to the Constitution and shown its scorn for the rights of state legislatures to make laws and of a free people to govern their own affairs.