gay marriage

The Right Outcome for the Wrong Reasons by Dahlia Lithwick

This morning, without explanation, the justices of the Supreme Court refused to hear any of the seven cases pending before them regarding same-sex marriage. The unexpected action allows lower court rulings that overturned statewide bans to stand. This means that same-sex couples in Utah, Oklahoma, Virginia, Wisconsin, and Indiana will be free to marry almost immediately. It also suggests that couples in West Virginia, North Carolina, South Carolina, Kansas, Colorado, and Wyoming—all covered by appeals courts that have struck down the bans—may be able to marry in the near future. The decision takes the parties who were waiting for a decision in these various states off hold and allows them to marry. But the Supreme Court today declined to issue any kind of guiding opinion about the constitutionality of gay marriage in all 50 states.

Scalia called it.

The Roberts Court’s Brief Progressive Moment by Jeffrey Toobin

It’s hard enough to know what the Justices of the Supreme Court are talking about when they write opinions, which tend to be dense, convoluted, and laden with coded references that are decipherable only to a few. But, on Monday, the Court presented an even greater interpretive challenge: determining what it meant when it said nothing at all. Without comment, the Court let stand successful challenges to the bans on same-sex marriage in five states. Those lower-court rulings had been stayed while the parties waited to hear from the Justices. Now that they won’t be saying anything, same-sex weddings can go forward in those states and, soon, in others in their circuits. Clerks in Utah and Virginia were already issuing marriage licenses on Monday afternoon. 

What was behind the Court’s action? Several theories make sense. The conservatives wanted to kick the can down the road until President Ted Cruz could replace Justice Ruth Bader Ginsburg. The liberals wanted to kick the can down the road until same-sex marriage was boring and routine in most of the country. Chief Justice John Roberts didn’t want to be on the wrong side of history but couldn’t bring himself to vote with the liberals. Justice Ginsburg didn’t want to repeat the trauma of Roe v. Wade and let the Court get too far in front of the country. All are plausible. 

Ultimately, at the Supreme Court, what matters is the result, not the motives. So, because of Monday’s non-decision decision, gay people in thirty states, representing well more than half the country, will now enjoy the right to marry. A decade ago, marriage equality existed only in Massachusetts. It is a remarkable legal and social transformation—an astonishing victory for progressive legal thought and action.