The Supreme Court’s decision to sit out the legal battle over same-sex “marriage” will — for now, at least — leave the future of laws prohibiting gays and lesbians from marrying in the hands of lower state and federal court judges. But it also almost certainly means the couples challenging those laws are more likely to win in the end.
The court said Oct. 6 it would not hear appeals from five states — Virginia, Utah, Oklahoma, Indiana and Wisconsin — whose same-sex “marriage” bans had been invalidated by lower federal courts. The decision, issued without explanation, will likely lead to recognition of gay “marriages” in 11 states, the five mentioned above and Colorado, North Carolina, South Carolina, Kansas, West Virginia and Wyoming.
The following day the 9th Circuit court of appeals invalidated marriage laws in Idaho and Nevada. Other states impacted by this ruling are Alaska, Arizona and Montana.
This would take the total of states recognizing gay “marriage” to 35 plus the District of Columbia. It also allows an avalanche of legal challenges to the remaining bans to keep going forward in state and federal courts, where gay and lesbian couples have overwhelmingly prevailed.
The high court’s refusal to step into the issue surprised activists on both sides of the gay-“marriage” debate, but observers speculate it may be a temporary reprieve, giving other gay-“marriage” cases time to wind their way through the system, fleshing out all the legal issues involved.
The court’s decision leaves 15 state laws blocking same-sex unions unchanged. Each is already under legal attack, facing challenges in state or federal court — sometimes both. Challenges to marriage bans already have reached a handful of state appeals courts and the federal appeals courts for the 5th, 6th and 11th circuits.
Some of those judges had been waiting to see what the Supreme Court would do. The court’s instruction is: Proceed.
Challenging state laws
Technically the Supreme Court’s decision does not dictate how those lower court cases should come out. But it sends a signal that is hard for lower court judges to ignore.
No federal appeals court has yet upheld a state law prohibiting same-sex unions. But judges on a 6th Circuit panel hearing a challenge to four state laws earlier this year expressed skepticism that the Constitution requires states to recognize those marriages. And two of the lawsuits are now in front of the conservative judges of the 5th Circuit. If either of those courts upholds a state ban, the justices might be faced with a marriage case that would be harder to sidestep.
If an appeals court upholds a state’s marriage protection laws the Supreme Court’s Oct. 6 orders appear “to pre-ordain that the Court, if it grants review, would overturn such a ruling,” Ed Whelan, president of the Ethics and Public Policy Center, wrote Oct. 6 for National Review Online. “For it is difficult to imagine that the Court would let the current judgments against marriage go permanently into effect in those states and then rule in cases from other states that there is no constitutional [same-sex ‘marriage’] right.”
By letting gay and lesbian “marriages” go forward in 11 other states the justices almost certainly made it harder to reverse course in the future, Yale law professor William Eskridge said. If they do, he said, the court would have to do more than simply prohibit some couples from marrying; it would have to invalidate marriages that have already taken place. “It will become very hard for the Supreme Court to take that back,” Eskridge said.
Sam Rohrer, president of American Pastors Network (APN), added that the high court’s decision allows lower courts to usurp control over state legislation, which is an attack on state sovereignty.
Russell Moore, president of the Ethics & Religious Liberty Commission (ERLC) of the Southern Baptist Convention, said Christians should neither “jettison a Christian sexual ethic in order to acclimate to the cultural moment” nor respond “with a siege mentality … in an era in which marriage is redefined and confused.”
Moore said changing times require a changing strategy, away from “culture wars” toward “cultural persuasion.”
“This is no time for retreat or for resentment,” Moore said. “This is a time for mission.”
He said in a written statement, “Let’s hold fast to what the gospel reveals about the meaning of marriage and the gospel behind it. Let’s articulate a Christian vision of what marriage should be, and let’s embody that vision in our churches. Let’s love our gay and lesbian neighbors. Let’s move forward with persuasion and with confidence.”
The Supreme Court’s refusal to hear the appeals came in spite of requests from both sides of the same-sex “marriage” debate that it make a ruling soon on the question of constitutionality. The ERLC joined four other religious organizations in a September friend-of-the-court brief urging the justices “to end the divisive national debate.” The current legal ambiguity is burdening religious organizations and people of faith, they said.
Ruling implications
The expansion of same-sex “marriage” has resulted in a growing clash between the supposed rights of gay couples and the religious freedom of individuals and organizations. Photographers, florists, bakers and other business owners who oppose serving in support of same-sex wedding ceremonies are facing penalties for their refusal. The legal conflict raises questions about whether additional legislation is required to protect religious liberty and conscience rights.
Same-sex “marriage” will be one of the topics of the ERLC’s conference Oct. 27–29 in Nashville — “The Gospel, Homosexuality and the Future of Marriage.”
(Compiled from RNS, BP, ABP and APN)
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