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.
In one sense this is an unreserved victory for gay rights. State attorneys general came to the Supreme Court begging to have these rulings overturned, and the court simply blew them off. The unequivocal message has to be that not one of these states had an argument that the court deemed worthy of consideration. And as same-sex marriages are slowly performed in state after state, the deed will have been done. It’s over. Same-sex marriage will be legal in 30 states and Washington, D.C.
David Codell, the constitutional litigation director for the National Center for Lesbian Rights and co-counsel in the Utah case, puts it this way:
It seems inconceivable that the Supreme Court would permit marriages to go forward in the five states at issue if the justices had any inclination ultimately to rule that same-sex couples do not have a constitutional right to marry. Today is one of the greatest days in the history of LGBT rights in the United States. It is very rare for the Supreme Court to deny review when a state constitutional amendment is struck down.
And while this is a massive win for gay marriage, it could surely have been done so much more bravely. For all practical purposes, it kicks the question of same-sex marriage down the road yet again. It’s a big, big win but achieved in a small way, and possibly for very wrong reasons.
Speculation is running rampant today as to why the court opted to duck the issue yet again. You need four votes for the Supreme Court to hear a case. Do the four liberal justices feel they simply don’t have a guaranteed fifth vote in Justice Anthony Kennedy? Do the conservative justices feel that it’s unwise to create a monstrously controversial constitutional headline just prior to a midterm election? (And perhaps hold out the hope for a dramatic change in the composition of the court in the very near future?) Does the chief justice worry about being on the wrong side of history but find himself unable to get square with the right side of it? One inevitably wonders what Kennedy is thinking. More, one wonders what Kennedy’s colleagues believe he is thinking …
This is precisely the outcome Justice Ruth Bader Ginsburg said would not come to pass. In an interview with the Associated Press this past summer, Ginsburg hinted that the Supreme Court would not avoid the question of same-sex marriage for much longer: “I think the court will not do what they did in the old days when they continually ducked the issue of miscegenation,” she explained. “If a case is properly before the court, they will take it.”
But then last month she appeared to backtrack in a speech at the University of Minnesota Law School:
So far the federal courts of appeals have answered the question the same way—holding unconstitutional the bans on same-sex marriage. There is a case now pending before the Court of Appeals for the 6th Circuit. Now if that court should disagree with the others, then there will be some urgency in the court taking the case. But when all the courts of appeals are in agreement, there is no need for us to rush to step in.
This endless dancing around worries some court-watchers. Is the court waiting to rack up a few more wins? Does it matter that much that we hear from a dissenting court—which most of us believe will soon materialize in the form of the 6th Circuit, which may uphold a ban? Is this about election-year politics? Or about the inscrutable wonder that is Kennedy’s road map to marriage equality, which has been something of a Zeno’s paradox of half steps and quarter steps?
There is a lot to be said for the “passive virtues” of a judicial branch that hangs back and waits. Certainly nobody will be enraged at what the court did or failed to do today. But is the Supreme Court hanging back so far that it fails to lead? And what will it mean if an opinion never gets written that says: “This is discrimination. This denies the very dignity of same sex couples and basic principles of equality. This was wrong”? It’s especially confusing that the court stayed the lower court decisions, rushed the cases into conference, and then opted not to hear them. Why all this urgency to wait?
Underneath all of these contradictory signals lurks a larger issue the court is grappling with: a fear that they need to time these marriage decisions around some magical moment in the ebb and flow of public opinion. At least some justices may want to avoid kicking up a backlash similar to the one the court was said to have created after its Roe v. Wade ruling in 1973. As Adam Liptak wrote before the court decided two marriage equality cases in 2013, the same-sex marriage litigation takes place “under the shadow” of Roe, and both opponents and supporters of marriage equality worry about foisting a decision about a contentious social issue onto the public before its time.
Ginsburg famously worries about the Roe backlash, as she explained a few years ago in a talk at Columbia Law School: “It’s not that the judgment was wrong, but it moved too far, too fast.” In her view, state legislatures were making headway without the Supreme Court bigfooting all over the abortion question. It should have confined the Roe ruling to Texas, without declaring that a national right to abortion was protected by the Constitution. In Ginsburg’s view, “the Supreme Court’s decision was a perfect rallying point for people who disagreed with the notion that it should be a woman’s choice,” she explained at Columbia. “They could, instead of fighting in the trenches legislature by legislature, go after this decision by unelected judges.” (Linda Greenhouse and Reva Siegel have argued persuasively that this was not, in fact, the state of the abortion landscape when Roe came down, and that if the Supreme Court had not acted, women in great swaths of the country would still be denied the fundamental right to determine their own reproductive lives.)
Over at the Economist, the editors recently posited that it is precisely this fear of stirring up a nationwide backlash to marriage equality that was leading Ginsburg or another member of the court’s liberal wing to slow-walk this current round of litigation: “With state after state coming to the conclusion on their own that same-sex partners should have the right to wed, a national judicial ruling requiring this of all states, all at once, may risk short-circuiting this progress rather than cementing it.”
Maybe. Or maybe Ginsburg sees no parallel between the abortion cases and the marriage cases. She said as much in a 2013 interview, when she declined to connect the “backlash” she attributes to Roe to the marriage equality cases. Either way, this whole conversation around the instant of national readiness for same-sex marriage strikes me as unseemly. For the court to imagine that there will be an ideal moment, next month or in January, when it believes the nation is fully ready to accede to gay marriage, suggests that the court isn’t merely aware of public opinion, but hostage to it.
The court should not be in the business of gingerly surfing public opinion until it’s safe enough to ride that wave into shore. And by waiting (or even talking publicly about thinking about waiting) for the majority of Americans to climb on board before ruling, the court is failing at its most vital task: protecting civil liberties from majorities not inclined to wait. The court hardly becomes more legitimate by suggesting that it will decisively do the right thing once it’s been done. And as of today, it’s been done.
It’s time. It was time in 2013 when the court couldn’t quite bring itself to go all the way in United States v. Windsor, or the Proposition 8 case: It struck down provisions of the Defense of Marriage Act and limited the impact of California’s same-sex marriage law, but it declined to take the final step to find a right to same-sex marriage. (Virtually every court reads Windsor as having taken that final step anyhow, which is another reason the court should step in and clarify whether that is the case.) And it’s time now, when court after court and state after state realizes that the gay marriage bans have no more merit than the anti-miscegenation bans of the Jim Crow era. It’s time now that the arguments against gay marriage have dwindled to the point that they truly strain credulity. It’s time because all around this country, partners who wish to visit spouses in hospitals, children who should have both parents on a birth certificate, and couples who want the dignity and legitimacy of their state announcing that they, too, are married are waiting to be told that it’s finally time. And it’s time because as five more states (and six more after that) now join the states that have already recognized this right, it’s simply become too late to say that it is not yet time.
It is all well and good that justices worry about public opinion, their legacies, upcoming elections, counting to five, and the possibility of backlash in private. They are, after all, human. But a public debate, even a confusing and coded one, among the justices about whether they have yet gamed public opinion to the point that they can bravely do what was clearly right two years ago, and also 20 years ago, and what will be right in nine months as well, acts to delegitimize the cause of marriage equality, even if it serves to legitimize the court. It’s time. And maybe now it’s past time. Kennedy has long looked like he was poised to write that opinion. It’s an opinion everyone in America desperately needed to read.