When the Supreme Court declines to hear a case — known as “denying cert” — it can seem anticlimactic. Instead of dramatic oral arguments and protests outside the Court, we get a written notification that the decision of an appeals court will stand.
But sometimes, denying cert is an earthquake. And that’s what happened today. The Court denied cert in same-sex marriage cases from Indiana, Wisconsin, Utah, Virginia, and Oklahoma. In all five cases, appeals courts had declared state laws banning same-sex marriage to be unconstitutional. The decisions of those appeals courts now stand, which means that same-sex marriage is permitted not only in the 19 liberal states (plus D.C.) where it was already legal, but in some of the most conservative states in the country.
And that’s not all. It isn’t just these five states, it’s also every state covered by the circuit courts that rendered these decisions. Utah and Oklahoma are in the 10th Circuit, Wisconsin and Indiana are in the 7th Circuit, and Virginia is in the 4th Circuit. Taken together, these circuits cover 14 states, three of which (Illinois, New Mexico, and Maryland) already have marriage equality on the books. So marriage equality will shortly be the law in these additional states: Utah, Wyoming, Colorado, Kansas, Oklahoma, Wisconsin, Indiana, Virginia, West Virginia, North Carolina, and South Carolina.
That makes a total of 30 states plus D.C. in which same-sex couples will be allowed to marry. So what happens now?
In all these cases, the appeals courts ruled in favor of marriage equality. It’s entirely possible, perhaps likely, that one of the more conservative appeals courts could rule the opposite way, upholding a state law banning same-sex marriage. When that happens, the Supreme Court will be all but required to hear the case.
But Samuel Bagenstos, a law professor at the University of Michigan and former DoJ official, told me that in the light of today’s ruling, the outcome of those cases may be foreordained. “If and when the Fifth or Sixth Circuit goes the other way, the Court will grant cert then,” he said. “But it seems to me unthinkable that the Court will rule against a right to marriage equality after allowing the decisions to go into effect in the Fourth, Seventh, and Tenth Circuits in the face of an active defense of the state laws forbidding same-sex marriage.”
Bagenstos also pointed out how unusual it is for the Court to dispatch a set of rulings with this magnitude and broad societal implication without actually hearing the case. “I can’t think of any similar case where you have had lower federal courts strike down a large number of very prominent state laws as unconstitutional without the Supreme Court granting cert,” he said.
If Bagenstos is right, the Supreme Court just legalized same-sex marriage in most of the country as a prelude to the case, not long in coming, when they’ll do the same for every state in the land.
So as a legal matter, the argument over same-sex marriage — one of the most contentious, dramatic, and controversial social issues of the last couple of decades — looks to be all but over. That doesn’t mean we won’t still debate and discuss it, but the uncertainty is nearly gone. Conservatives have known for some time that this a battle that they would inevitably lose, but they may not have thought their final defeat would come so soon.
The political fallout over the next couple of years will be fascinating to watch. It has always been much easier for Republicans to argue against marriage equality when it was something abstract and disconnected from actual couples making a lifetime commitment to one another. So what will a politician in a place like Indiana or South Carolina say now, when the news will be filled with joyful couples in his state getting married? He’ll be in quite a pickle.
But rest assured: a few years from now, when everyone has gotten used to everyone being able to get married, Republicans are going to argue that they were for equality all along.