5 Questions About The Supreme Court And Gay Marriage In The U.S.

Oct 6, 2014
Originally published on October 6, 2014 6:22 pm

On Monday, the Supreme Court surprised many when it refused to enter the contentious debate over gay marriage.

The court left intact decisions by three federal appeals courts that had struck down bans on gay marriage in parts of the South, West and Midwest. Attorneys general in five states asked the court to review those decisions and overrule them. But the court instead stepped back, leaving the lower court rulings intact.

Although the lower court decisions covered bans on same-sex marriage in just five states, the decisions will now extend to an additional six states that are governed by the decisions of those three courts.

With bans on same-sex marriage essentially lifted in a total of 11 more states, what does Monday's development mean for same-sex couples who want to marry in those states?

In the five states with bans that had already been struck down, marriages are likely to begin immediately. Virginia, for instance, began issuing licenses on Monday. Utah, Oklahoma, Wisconsin and Indiana will not be far behind. Indeed, in Utah, some same-sex couples actually got married during the brief period before the lower court decision was put on hold pending Supreme Court action. In six other states — Colorado, Kansas, Wyoming, North Carolina, South Carolina and West Virginia — it may take a little more time for same-sex couples to start marrying, but it won't be long, since those states are governed by the decisions the Supreme Court left in place on Monday.

There are still 20 states where bans on gay marriage remain in effect. What's likely to happen there?

New lawsuits are already in the pipeline challenging the bans there, too. The 9th Circuit Court of Appeals, covering the far West and Northwest, and the 6th Circuit, covering parts of the Midwest, have already heard arguments in same-sex-marriage cases, with decisions in the offing. The 5th Circuit is due to hear an appeal soon from a district court ruling that struck down the Texas ban. And the 11th Circuit is in a similar position regarding district court decisions that struck down Florida's ban.

Will the court take up same-sex marriage in the future? If it does, could thousands of gay marriages then possibly be revoked?

It very likely will not take up a gay-marriage case unless one of the appeals courts that has not ruled yet upholds a state ban, thus creating a conflict with other appeals court rulings. That is the kind of conflict that the Supreme Court traditionally does resolve.

The justices are said to be looking for the "best vehicle" to serve as a test case. What would such a case look like — and is one in the legal pipeline?

The court had plenty of good vehicles that it chose not to drive this time. There were seven cases to choose from, with good lawyers, clear facts and clean disagreements. But the court decided to keep its nose out of the controversy for now, and as long as the lower courts of appeal agree on the result in these cases, there is little pressure on the court to intervene. Moreover, many experts said Monday that by staying out of the issue, the court was sending a clear message to the lower courts that they were doing the right thing.

Advocates on both sides of the argument had been hoping for the court to step in. In the past, has the Supreme Court approached any other important national issues in a similar way?

It often takes a long time for the court to enter the fray, particularly in cases that involve big social issues. Brown V. Board of Education, the 1954 decision ordering an end to public school segregation, was decades in the making, with the court taking incremental steps before it got to the end result. And sometimes, when the court acts quickly, it has fanned the flames of controversy. Critics of Roe V. Wade, the court's 1973 abortion decision, for instance, say that the justices should have stayed their hand and let the issue play out more in the state legislatures and the lower courts.

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