The Supreme Court had five same-sex marriage cases before it this term, all vying to be the one. There was the Utah case (Herbert v. Kitchen), in which three same-sex couples sought to overturn a statewide vote banning gay marriage. There was the Virginia case (Rainey v. Bostic), which began when two men who've been together for nearly 25 years sought a marriage license in Norfolk. Then there was an Oklahoma case (dating all the way back to a 2004 lawsuit), an Indiana case (filed just earlier this year) and one in Wisconsin (representing eight more couples seeking state recognition).
In all five cases, circuit courts had struck down state bans on gay marriage. And in all five cases, those rulings have been on hold while everyone waited for the Supreme Court to weigh in. The only question was which case the high court might chose to usher in a definitive civil-rights ruling on the constitutional right to gay marriage. The prospect of such a ruling, colleague Robert Barnes wrote of this new term, "would impart landmark status on a docket that so far lacks a blockbuster case."
Today, in a decision that surprised many court-watchers, the nine justices chose none of the above. With no explanation — and no sense of how many or which justices made this decision — the court declined to review any of these cases. As a practical matter, that means the lower circuit court rulings now stand. As of Monday afternoon, same-sex couples in Virginia could marry. The same will be true soon not just in the other four states, but likely in additional states also covered by the Fourth and Tenth Circuits. In effect, it looks likely that gay marriage will soon be legal in 30 states, with more to come.
As a legal matter, the implications of Monday's decision are less clear-cut. Anyone hoping for a definitive, end-of-discussion Supreme Court decision on gay marriage this coming year will not get one. That means that while the court just delivered good news to gay couples in Virginia, it didn't directly do much for same-sex couples in Nebraska or Tennessee.
But there's also another interpretation of what the court said today in not saying much at all. As Amy Davidson at the New Yorker put it, the seemingly elusive "historic fifty-state case might already be on the books."
She's referring to last year's historic DOMA decision, in which the court ruled that the federal government can't discriminate against gay couples living in states that have legally recognized their marriages. At the time, the Supreme Court declined to rule on a second related case, challenging California's same-sex marriage ban, that could have set a broader precedent, either upholding or striking down state gay marriage bans across the country. The court dodged the decision by dismissing that case on procedural grounds. Together, the two cases yielded an unfinished victory for gay-rights supporters.
In the year since then, however, lower courts have repeatedly borrowed the legal logic and language of the DOMA decision to do what the Supreme Court itself did not, declaring state marriage bans unconstitutional. And by effectively leaving those decisions intact Monday, the court has chosen not to object to that interpretation of its own ruling.
In other words, the court's decision to say nothing at all right now may mean that it already said more on gay marriage than many realized.