So the Court officially gave no hint as to how it would rule when—or, as of today if—the same-sex-marriage issue comes before it. Unofficially, I don’t see how that can be true. I don’t see how today’s decision doesn’t signal that even within the Court, the fight is over.
The reason is this: When cert. is denied, the judgment below becomes final. In every one of the marriage cases below, a federal court of appeals held that the parties before it are entitled to recognition of their marriages, or entitled to be legally married in their state or residence. Laws and state constitutional provisions limiting marriage to “one man and one woman” are void. In each case, either the court of appeals itself or the Supreme Court had “stayed the mandate” pending Supreme Court review. Today those stays began to disappear. They cannot survive.
In the days and weeks ahead, couples will be allowed to marry in their states. In fact, Virginia Attorney General Mark Herring has announced that marriages can begin in the commonwealth as early as 1 p.m. today.
So two things have changed as of 9:30 this morning, when the orders issued. First, there will soon be thousands of same-sex couples married by order of the courts. And second, the lower-court opinions, which said the Constitution provides a right for same-sex couples to marry, are now the law.
That sounds redundant, but it’s not. As long as cert. was pending, the lower-court opinions were in limbo. Meanwhile the issue is pending in the Fifth, Sixth, Ninth, and 11th Circuits. Any panel in one of those circuits must now confront a huge weight of federal authority affirming same-sex marriage. True, other circuits' decisions are not “binding”; true, the Supreme Court did not give any hint of its position. But that’s still a lot of contrary authority to move against. Any judge writing an opinion that bars same-sex marriage must explain why he or she is ignoring all the previous decisions.
That still could happen. The press has speculated that the Sixth Circuit may soon issue an opinion allowing state bans to stand. The Fifth and 11th are among the most conservative of the circuits. If one of them breaks step, then the Court will have to take that case. And it would seem to most observers that it would be granting to reverse.
The four dissenters in United States v. Windsor—the Defense of Marriage Act case—may have looked around the conference table last week and realized they would never get five votes to overturn the lower courts; that is, that Justice Anthony Kennedy was committed to taking his Windsor opinion to its fullest extent. Such an opinion might not only affirm same-sex marriage; it might hold, as some lower courts have held, that sexual orientation is a “heightened scrutiny” classification, like race or sex. All laws that discriminate against gays and lesbians would be in danger then. Chief Justice John Roberts and his allies may hope that every circuit will come to the same decision, so that gay marriage will become the law without a broad Kennedy opinion upholding the rights of gays in other areas.