L'America: The Supreme Court on Gay Marriage

A few have asked me to explain the meaning of the refusal of the Supreme Court to review gay marriage again.

Let’s start with the technicalities: The Supreme Court of the United States, unlike many Constitutional Courts around the world, is the overall ultimate instance and doesn’t just decide matters of constitutionality, it has broad sweep of the legal landscape and its rulings are binding on everyone in this country. It is also free to choose the matters it wants to tackle. Technically, it is limited to reviewing lower court opinions, but since anyone with a chance to appeal, does, it gets to see pretty much everything that goes on in the legal landscape.

The Supreme Court (of the United States, short SCOTUS) heard a case last year. It was about a woman who had married another woman in a state where it was legal. The woman’s wife died, leaving behind a considerable estate. Since the couple were not legally married in the eyes of the Federal Government, the tax office wanted to collect estate tax as if the two were completely unrelated strangers, instead of the much lower tax rate for married couples.

This case, styled United States v. Windsor, was a particularly good case for the cause of gay marriage. Here we had a couple who had been married in the state they lived in for years, who was denied a substantial Federal benefit because the government chose not to recognize their marriage. This had all sorts of ominous undertones for conservatives and liberals alike: what was the Federal government’s business picking what marriages it liked?

SCOTUS decided the law on which this discrimination was based had to go. With the slimmest of possible majorities (5-4) it declared the law unconstitutional. Dissenting opinions (from three judges) focused on the legalistic argle-bargle, the confusing nature of the Court’s finding. In that, they were absolutely right: just as was the case in the Prop 8 case, the Court refused to be clear about its intent. Which is precisely what they wanted, the thing you would expect from a bunch of Catholics trying to do the right thing and not run afoul of church teaching.

After the ruling in United States v. Windsor, lower courts knew what SCOTUS meant. One after another, court cases on invalidation of same-sex marriage bans were decided, and virtually all of them were in favor of allowing gay marriage. More than that, every single appellate court decided in favor of same-sex marriage.

America’s Federal Court system has a series of first instance courts, the District Courts. They decide on matters of federal law, while State Courts are responsible for most other matters. A District Court ruling can be appealed to an Appeals Court. There are ten such courts in the United States, and they are numbered. California, for instance, is the center of the Court of Appeals for the Ninth Circuit, which also includes all West Coast States (and Hawaii and Alaska for good measure).

As mentioned, SCOTUS can pick its battles. In particular, the battle it picks most likely is the “Circuit Split:” that’s when two Circuits have substantially opposing ruling on essentially the same matter. If one Court of Appeals had ruled in favor of gay marriage and another in favor of upholding a marriage ban, SCOTUS would have most likely intervened.

The other time SCOTUS loves to throw itself into the fray is when it thinks the Appeals Court got a ruling wrong. They seem to like doing that with rulings from the Ninth Circuit (the one seated in California), which is slightly strange and an indicator of how East Coast the Supreme Court Justices really are.

With gay marriage, SCOTUS didn’t have to pick a battle. The Appeals Courts, so far, all agree that discrimination against gay people is not acceptable, and that gay marriage bans have to go. They agree not only with the Windsor decision at this point, but with each other. Indeed, later rulings frequently cite earlier rulings in the matter.

So, when SCOTUS found itself with a handful of gay marriage cases, it decided it was the prudent thing to do to wait. It declined (permanently) to hear the appeals of the Appeals Court decisions, which means those decisions are final. That means that in the states covered by the Appeals Courts, gay marriage is now legal. In states where the Appeals Courts have not made up their mind, gay marriage may still be illegal.

Ideally, one thinks, SCOTUS would like all ten appeals courts to individually strike down gay marriage ban. Thus, gay marriage would become the law of the land, and the Supreme Court would never have to make a pronouncement on the matter. Trust me, all indications are that SCOTUS doesn’t want to get involved if at all possible.

The other option would be that a circuit split occur. By that time, though, thousands of gay couples will have been married in the states where SCOTUS let gay marriage stand. It’s inconceivable that SCOTUS would then turn around and ban gay marriage again, invalidating those thousands of marriages. It might return to the states the right to ban gay marriage, but by then the idea is that gay marriage will seem so normal, nobody will think of doing that again.

In the end, SCOTUS has had a very strange history on gay issues, reflecting its Catholic (super-)majority. That’s because gay rights have been traditionally viewed as a wedge issue between conservatives and liberals – in the country and on the Court. For thirty years or more, there has been a sort of balance in SCOTUS, with 4 Justices inconsistently voting “Conservative” and 4 voting “Liberal.” The ninth Justice has mostly been on the conservative side, but Justice Kennedy has emerged as “Liberal” on gay issues since his 1995 opinion in Romer v. Evans.

Kennedy is staunchly Catholic. It is no surprise that he both sees the despair that gay marriage bans cause, and still wants to keep good standing with a Church whose doctrine teaches that homosexuality is a sin, but whose clergy is disproportionately gay.

I tell you, if you expect SCOTUS to make a final pronouncement on gay marriage, you’ll have to wait for a split, or for another one of the conservative Justices to see the light.