About a year ago, the Supreme Court decided that a ruling by a single federal judge in Salt Lake City was not enough to force Utah to issue marriage licenses to same-sex couples. It agreed with objecting state officials and ordered the weddings stopped until higher courts took a look.
But about a month ago, the opposite occurred.
The court decided that a single federal judge’s ruling in Tallahassee was adequate to force objecting Florida officials to let gay marriages commence in the nation’s third most populous state. It turned down their plea that the marriages should wait at least until a higher court could review the judge’s order.
In neither case did the justices consider the merits of the decisions that said the Constitution’s guarantee of equal protection and due process forbids states from offering marriage only to heterosexual couples.
But they go a long way in explaining the national environment in which the justices will consider the issue.
On Friday, the court accepted all challenges of same-sex marriage prohibitions in Michigan, Kentucky, Ohio and Tennessee. Federal judges had struck down the restrictions, but a panel the U.S. Court of Appeals for the 6th Circuit — in contrast to every other appeals court to consider the issue — upheld them.
The justices said they will decide:
“1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?”
The court said it will hear 90 minutes of argument on the first question and an hour on the second, as opposed to the usual 60 minutes it allots for oral argument. The date for the April arguments has not been set, and the court will decide the issue before it adjourns at the end of June.
As soon as the court order came around 3:30 Friday afternoon, observers pulled out the microscope and scalpels and began dissecting for clues.
Some saw what Indiana University law professor Steve Sanders called a “grand gay rights/federalism compromise” that would play to pivotal Justice Anthony M. Kennedy’s mutual interests of states rights and gay rights:
“ ‘Yes’ on the right to remain married, but ‘question-reserved-for-another-day’ on the right to get married,” Sanders wrote.
Others focused on the wording. The court consolidated the four cases but did not accept the wording of the “question presented” in any of the petitions.
Richard Hasen, a law professor at the University of California at Irvine, who frequently comments on the court, questioned the emphasis on what the Constitution forces states to do, rather than the rights of the couple. He wondered if the court “stacked the deck against gay marriage in how it has framed the question?”
He was quickly answered by those who thought otherwise.
Indeed, the Supreme Court’s formulation — “Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?” — is a tighter version of the question the 6th Circuit panel said it was deciding: “Does the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment require States to expand the definition of marriage to include same-sex couples?”
For what it is worth, lawyers representing the challengers said publicly and privately that they did not think the wording makes much difference.
(While we’re in the weeds, what happened to Love v. Beshear, the Kentucky case that 6th Circuit Judge Jeffrey Sutton noted featured a set of plaintiffs led by the “fortuitously named” Timothy Love? It would have made a striking complement to Loving v. Virginia, the 1967 case that eliminated bans on interracial marriage. The answer is Love remains a plaintiff in the Supreme Court, but his case was subsumed by the more blandly named Bourke v. Beshear. Steve Beshear (D) is Kentucky’s governor).
Taken together, the cases will allow the court to approach the issue on all fronts: The justices will consider licensing requirements in the Michigan case, recognition of marriages performed elsewhere in the Ohio and Tennessee challenges and both in the Kentucky cases.
But the focus Friday tends to obscure what has come before and the huge role the court played this year in expanding same-sex marriage to its current availability in 36 states and the District of Columbia.
The number was about half that just four months ago, when the justices decided without comment not to review appeals courts decisions striking down bans in Utah and other states.
That, plus another appeals court ruling, greatly expanded the number of states where bans were found to be unconstitutional. And a majority of the Supreme Court — no one knows how big, because the justices haven’t said — has turned down every state’s request for a stay.
That includes Florida, where no higher authority has reviewed the district judge and only justices Antonin Scalia and Clarence Thomas noted that they would have granted the stay to allow that to happen. Now the state’s great tourism machine is in gear, enticing same-sex couples to come for the wedding and stay for the honeymoon.
Everyone who follows the court knows that it can do what it wants, and that its unsigned and unexplained rulings on stay requests do not bind its actions on the merits of a landmark constitutional decision.
But they are as important contextually as how the justices decide what they are going to decide.