'A Very Conscious Decision to Kind of Let it Ride': Will Supreme Court Take Up Same-Sex Marriage?

WASHINGTON – The Supreme Court refused earlier this month to review same-sex marriage cases, leaving for another day a widely anticipated ruling on the issue – but leaving the door open for unions today, as one red state began issuing marriage licenses this week.

The Supreme Court turned down on Oct. 6 all of the seven petitions related to gay marriage, eliminating same-sex marriage bans in Virginia, Indiana, Wisconsin, Utah, and Oklahoma. Those five states joined 19 others and the District of Columbia in allowing gay marriage in the United States. The decision immediately jeopardized bans in Alaska, Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming because those states fall under the jurisdiction of the same appeals courts.

A day after the Supreme Court’s decision, the Ninth U.S. Circuit Court of Appeals in San Francisco issued an opinion striking down the gay-marriage bans in Idaho and Nevada. Arizona and Montana, which are also in the Ninth Circuit, could soon see their same-sex marriage bans overturned.

The legal ripple effects from the various appeals courts rulings the Supreme Court tacitly upheld could soon raise the number of states that allow same-sex marriage to 35.

The decision will also affect regions where appeals courts have not yet ruled.

The Sixth Circuit is expected to rule soon on the validity of same-sex marriage bans in Kentucky, Michigan, Ohio, and Tennessee.

Wyoming became the newest state to start issuing marriage licenses to gay couples Tuesday after the state attorney filed a notice that they would not challenge the Tenth Circuit’s ruling striking down the same-sex marriage bans in Oklahoma and Utah.

Last year, the Supreme Court struck down the federal Defense of Marriage Act’s (DOMA) ban on same-sex marriage in its United States v. Windsor decision. The ruling granted same-sex couples married in states where it is legal the same right as heterosexual couples to obtain federal benefits.

But on the same day, the court sidestepped a ruling on whether the Constitution includes a right for people of the same sex to marry. Many expected that a challenge against California’s same-sex marriage ban, Proposition 8, would lead to a Supreme Court ruling on the constitutionality of gay marriage. By a 5-4 vote, however, the Supreme Court decided to punt the case back to officials in California by ruling that supporters of California’s Prop. 8 did not have a right to defend the same-sex marriage ban on appeal when state officials had chosen not to do so.

The Windsor ruling, in particular, has paved the way for a wave of legal challenges against state-imposed marriage limitations. Judges have relied upon Windsor’s rationale in most of the lower-court rulings striking down state same-sex bans.

According to Freedom to Marry, advocates for same-sex couples have won 47 lower-court victories and have lost only three – the most recent defeat coming on Wednesday from a federal trial judge in Puerto Rico – since the 2013 Supreme Court decision.

After the 2013 rulings, Supreme Court observers expected same-sex marriage to be the marquee decision of the court’s 2014-15 term. Advocates on both sides of the issue had asked the court to offer a definitive ruling on same-sex marriage after the series of lower-court rulings.

The fact that no justices issued an opinion on why the court decided not to hear any of the same-sex marriage cases has generated speculation about the motives behind the Supreme Court’s silence.