Courts & Crime

Supreme Court ducks, for now, same-sex marriage question

The U.S. Supreme Court
The U.S. Supreme Court McClatchy

The Supreme Court on Monday stunned the legal community and advocates from all sides by ducking, at least for now, the question of whether the Constitution protects marriage equality.

Without written or public explanation, the court announced it would not hear any of the seven petitions concerning same-sex marriage bans in five states.

The decision means same-sex marriage bans in Virginia, Indiana, Wisconsin, Utah and Oklahoma are specifically struck down. The decision also means the reasoning by the lower appellate courts that struck down the specific state bans apply to all of the states in the individual appellate circuits.

“I would call this a huge step forward, but the job is still not done,” Evan Wolfson, president of Freedom to Marry, said in an interview Monday.

Mary Bonauto, an attorney with Gay & Lesbian Advocates & Defenders, added that the move was “fantastic news” and a “powerful signal to the many other courts considering the issue that there is no reason to delay and perpetuate the harms to same-sex couples around the nation.

The other states covered by appellate courts that have struck down same-sex marriage bans, and whose reasoning now applies throughout the specific appellate region, are:

Colorado, Kansas, New Mexico, Wyoming, Maryland, North Carolina, South Carolina, West Virginia and Illinois.

The justices initially had the cases listed for consideration at their private Sept. 29 conference. One potential impediment to the cases being heard is that, at present, there is no split among appellate courts that have ruled on same-sex marriage. A decision is still pending from the U.S. Court of Appeals for the Sixth Circuit.

The same-sex marriage cases mark the definitive follow-up to the court’s decision last year striking down key provision in the federal Defense of Marriage Act. In striking down the 1995 law’s ban on same-sex couples obtaining myriad federal benefits, the court’s 5-4 majority laid the foundation for attacking state-imposed marriage limitations.

“This places same-sex couples in an unstable position of being in a second-tier marriage,” Justice Anthony Kennedy wrote of the federal benefit restrictions. “The differentiation demeans the couple, whose moral and sexual choices the Constitution protects.”

At the same time, Kennedy has since suggested judicial caution might be in order.

“A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say,” Kennedy said earlier this year.

Since the court’s June 26, 2013 decision in the Defense of Marriage Act case, same-sex couple advocated have wracked up 40 lower-court victories, and only lost twice, according to a tally by the group Freedom to Marry.

Nineteen states and the District of Columbia currently permit same-sex marriages.

Correction: An earlier version of this story reported the Defense of Marriage Act decision was June 30, 2013.

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