http://blogs.wsj.com/law/2014/10/06/an-explainer-on-the-supreme-courts-same-sex-marriage-decision/11:50 am ET
Oct 6, 2014 CIVIL LITIGATION
An Explainer on the Supreme Court’s Same-Sex Marriage Decision
By ASHBY JONES
In a surprising move, the U.S. Supreme Court Monday morning declined to hear appeals from five states in same-sex marriage cases.
Here’s a quick Q&A on what it all means.
In what states can same-sex couples now get married?
Same-sex marriage is likely to begin shortly in at least five states: Utah, Indiana, Wisconsin, Virginia and Oklahoma. In regard to each of those states, a federal appeals court had struck down a state ban on same-sex marriage, but had stayed the effect of the ruling pending a review by the U.S. Supreme Court. Now that the Supreme Court has punted, those stays are lifted, allowing same-sex marriage to begin in each of those states.
Are any other states effected by the ruling?
Probably. Generally speaking, rulings from federal appeals courts apply to every state within a court’s territory. So a ruling from the Fourth U.S. Circuit Court of Appeals that arises out of Virginia, for instance, typically also applies to the other states covered by the circuit, namely West Virginia, Maryland, North Carolina and South Carolina.
On Monday, the Supreme Court left in place rulings from three circuits — the Fourth, Seventh, and 10th. It’s likely that bans on same-sex marriage in six states within those circuits are now in serious jeopardy. Those states are North Carolina, South Carolina, Kansas, Wyoming, West Virginia, and Colorado.
The bans in those six states won’t fall automatically, according to Paul Smith, the head of the appellate and Supreme Court practice at Jenner & Block LLP in Washington, D.C. Rather, same-sex couples will likely have to formally ask a court within those states to apply the broader circuit-court ruling. Or, alternatively, the states could start issuing licenses on their own. Once that happens, same-sex marriage will likely begin in each of those states.
And if that happens, in how many states will same-sex marriage be legal?
Thirty, plus the District of Columbia. Sixty percent of the U.S. population now live in states in which same-sex marriage is legal.
The Supreme Court took up two same-sex marriage cases two terms ago. Why the reluctance now?
It’s not exactly clear. The Supreme Court typically doesn’t explain why it decides to hear — or not hear — individual cases. And it made no exception to this on Monday, as you can tell by the order it issued.
But Justice Ruth Bader Ginsburg gave us a bit of insight into the court’s thinking last month at a speech in Minnesota. She essentially said that without a disagreement on the issue from lower courts — a “circuit split,” in Supreme Court parlance — the court was unlikely to jump in now. A ruling upholding a state ban on same-sex marriage, Justice Ginsburg said, might prompt “some urgency” on the part of the court. Without a split, she added, “there is no need to rush.” Cases are currently pending at the Fifth Circuit in New Orleans and Sixth Circuit in Cincinnati.
But the Supreme Court’s decision on Monday “lets the whole chaos stand for a while,” said John Eastman, the chairman of the National Organization for Marriage, which opposes same-sex marriage.
How did the justices vote on this?
We don’t know. Justices don’t typically reveal how they voted on whether to hear a certain case. One thing’s certain, however: that fewer then four justices voted to hear any of the cases. (Hearing a case — or “granting certiorari” — typically requires “yes” votes from at least four justices.) We can assume, based on her Minnesota response, that Justice Ginbsurg voted no. Beyond that is anyone’s guess.
So is this settled now? The Supreme Court has given the lower courts the final say on same-sex marriage?
No. All that we know is that the Supreme Court doesn’t feel like these particular cases are worth taking up now. Should a circuit split emerge, which could happen within several months, the court might be more inclined to jump in and settle the issue.
As Jonathan Adler, a law professor at Case Western Reserve University, wrote in the Washington Post:
There are several more cases pending in lower courts, including some in which there are reasons to suspect the states will prevail. If so, the court will have a split to resolve, making a grant a sure thing. If not, and same-sex marriage advocates run the table, the court can avoid resolving the issue.