You want to get gay married there? That’s okay with the US Supreme Court:
WASHINGTON — The Supreme Court on Monday denied review in all five pending same-sex marriage cases, clearing the way for such marriages to proceed in Indiana, Oklahoma, Utah, Virginia and Wisconsin.
The move was a major surprise and suggests that the justices are not going to intercede in the wave of decisions in favor of same-sex marriage at least until a federal appeals court upholds a state ban.
I’m sure that’s an oversimplification of the decision to decline review, but this sounds like tentative good news? What say you, legal beagles?
Punchy
This just isn’t going to fly in Utah or Indiana. The latter, in particular, (outside of Indy and Bloomington) is a complete cesspool of bigotry and intolerance. This will likely get really ugly before it gets better.
Plus, I thought I read that the 5th CC is primed to uphold these bans under the highly technical and legal precedents of Fuck You and Cleek’s Law.
Betty Cracker
@Punchy: Indiana is worse than Utah on the bigotry and intolerance scale? Wow. It must be really bad there. Utah is a functional theocracy, after all.
JPL
There’s two parts to the marriage debate, imo. If a couple moves to a state like GA, there marriage still won’t be recognized.
Cermet
As I understand it, if the Inferior Court of the land declines the case, the lower Appeal Courts, unless they already reviewed and gave judgement (in which case their judgement now stands), can’t now take it up. What ever the law was held as by the original court now stands. That is my take on the “What happens next” in the law but I am using what I have read.
kd bart
What does this really have to do with the subjects that really matter, the latte salute, Ebola and BENGHAZI?
Amir Khalid
How close is the US now to a majority of states with legal same-sex marriage?
Betsy
A very artful dodge, artfully and outwardly deploying the cover of judicial restraint to avoid entering the water now, while support for marriage equality, and acceptance of reality, steadily grows.
There was probably stong support, if not unanimous, among the Court for doing this. Those of the Supremes who would surely find against marriage equality don’t have to look like idiots for the rest of time, whereas those who would support it, don’t have to risk losing in a backward decision that would deprive so many of so much.
Meanwhile, that Person who is still dithering doesn’t have to make up his mind. So nice for him.
Sherparick
Anthony Kennedy, probably because he knows actual gay people who are in his social circle, will probably sees this as exception to his state sovereignty ideology. States should be able to tell who can vote and what kind of rights they have or don’t have, as long as it they are just dealing with the faceless masses. But where 1 percenters are concerned and subject to arbitrary bigotry, that is another story and the Constitution is there to protect them. Not that I disagree with this outcome, but I just have to speculate on how Kennedy justifies it to himself, since there are the 14th and 15th amendments limiting state sovereignty where race, women rights, and voting are concern. Kennedy would turn them back into the 19th and early 20th century dead letters on race and sex that they were before the Warren court, but they come alive for him on the Gay issue.
Matt McIrvin
@Amir Khalid: I think it may put it over the top, when these states all actually start issuing licenses.
Corner Stone
@kd bart:
They’ve all been mere preludes to the Obama Dictatorship’s final end game –
GAYPOCALYPSE!! The Ramming Down Your Throat Begins!
Matt McIrvin
@Amir Khalid: …oh, wait, you said majority of states; I was thinking majority of population.
For states, I’m counting 24 of 50 (and DC). So just short.
Corner Stone
Pete Williams on MSNBC was saying this effects up to 11 states if I understood him correctly? So it’s not just the headliners.
Bobby B.
Scalia’s busy warming up for the upcoming 4th Amendment cases. Gotta protect and serve the Police State!
kindness
With this Supreme Court if they deny taking on gay marriage that means they are about to illegalize abortion. I don’t trust them any farther than I can throw Scalia.
Joey Maloney
@Punchy:
That sound you heard – sort of a percussive wet shart tailing off into a wavery queef? That was Governor Mike Pence’s squishy head exploding.
Matt McIrvin
If it really flips all the states in those circuits, it’s way over a majority of both states and population.
dmsilev
@kindness:
How far is that, and did you determine the distance via trial and error?
JPL
@Sherparick: That’s a good point. It’s the Rob Portman view of life.
Comrade Dread
Congratulations to all of LBGT folks. Good news out of SCOTUS for once.
May you all continue to destroy the institution of marriage and the family by building happy, healthy families of your own. ;)
David in NY
@Matt McIrvin: Think Progress says 30, I think.
One other point. I’m not sure why everyone thought they’d grant cert right away. I don’t think there’s actually a split among the Federal Circuit Courts of Appeals on this — all these cases ruled in favor of equality. SCOTUS usually steps in when there’s a split among the Circuits, in order to ensure uniformity in Federal law — on important questions, the law in one Circuit shouldn’t be different from law in another. The situation will be different when the Court has before it a Circuit that ruled against equality — then there will be a split and the Court will almost certainly have to act. But if that day never comes (possible, if a little unlikely) the Court could (theoretically) do nothing at all.
Mike in NC
@kd bart: It’s very complicated. One cannot get gay married in Benghazi unless the ceremony is performed by an ISIS-approved Imam who has been certified to be free of the Ebola virus. There’s already a waiting list.
eric
@dmsilev: no, you look at how far the Founders could actually throw Scalia. Because they could not throw him at all given his lack of existence, then the distance is zero for all future throwers. Except for Scalia, who generously allows himself liberties to depart from such a rigid interpretative approach.
hoodie
Safe until they can get another republican on the Court and/or Scalia isn’t around, which probably means that gay marriage is in the clear. This may be a strategic punt by the conservatives, who may fear Kennedy joining with the remaining liberals and providing a decision that will explicitly recognize a right to marriage. Scalia probably also doesn’t want his dissent grandstanding, which has been cited by lower court judges that have invalidated gay marriage prohibitions, to be thrown back at him during briefing and oral argument. It’s a bit weird that it was this issue that split the money conservatives from the socons. Then again, it makes some sense that the wealthy would be against social prohibitions that actually might effect them and their loved ones and that they can’t use money to work around. The can always pay for contraception and discreet abortions, but they can’t really buy their way out of officially sanctioned homophobia directed at their family and friends.
burnspbesq
@Matt McIrvin:
The Fourth, Seventh, and Tenth Circuits cover a total of 14 states: Maryland, Virginia, West Virginia, North Carolina, South Carolina, Indiana, Illinois, Wisconsin, Kansas, Oklahoma, New Mexico, Colorado, Wyoming, and Utah. New Mexico, Illinois, and Maryland were already on board, so the net pickup is 11, for a total of 30.
Yes, technically the circuit court’s injunctions only cover the five states that litigated, but those opinions are controlling authority in the entire circuit. I imagine that there will be complaints filed in the district courts in the remaining states this week (if there aren’t already cases pending), and some state AGs might bow to the inevitable. So as a practical matter, I’d say the number is 30.
OzarkHillbilly
@JPL: No longer true in Missouri (for this very short moment).
Face
I doubt this. This close to an election? No way they cry uncle here. They’ll litigate this (or at least promise to) until they’re thrown out of office.
burnspbesq
I hope there is a photographer present to capture the look on Sam Brownback’s face when he is asked to preside over the first ghey marriage in Kansas.
lamh36
Seeing as the new breaking news is about gay marriage, has anyone seen this Key & Peele skit on gay marriage…
Key & Peele – Gay Wedding Advice: http://youtu.be/rtgY1q0J_TQ
Oh and here’s hoping this leads to full marriage equality across all states.
OzarkHillbilly
@Matt McIrvin: It doesn’t flip them automatically. Somebody still has to sue in those states before a judge will be bound by the appellate ruling. But it is a fait accompli.
CONGRATULATIONS!
@kindness: Gays have money and organization and can (and do) fight. Very effectively.
Poor women have no such advantages.
I agree with your assessment. This court is feinting left and about to punch right, really hard.
burnspbesq
@Face:
Here is a draft of the AG’s press release:
“I don’t agree with the xxx Circuit’s ruling, and I hope that someday the Supreme Court will step in and correct this grievous error. However, as your Attorney General I am sworn to uphold the.law–all the law. I can’t justify wasting millions of your taxpayer dollars fighting a case that we are sure to lose. Accordingly, and reluctantly, I have instructed my staff to file an answer conceding all of the allegations in the complaint, and I will continue to join you in praying that the Supreme Court will someday restore God’s law to its rightful place at the top of our hierarchy of laws.”
mai naem mobile
@kd bart: what it means is that Lindsay and John can finally get gay married in SC and not have to messterbait to Benghazi and Ebola.
OzarkHillbilly
@burnspbesq: you said it better. (and first)
Botsplainer
I’m working on a lesbian divorce case out in the sort-of hinterlands of South Central Kentucky.
It is a maintenance case, there is a significant income disparity, and a decree of divorce (as opposed to a declaration of invalidity) has to happen, as my client intends to take their child (her biological daughter) back to Washington state to marry another, and there is a bigamy problem lurking in the declaration of invalidity.
Its a mess. The jurisdiction is the site of a large-ish state university, but the Fountain of Courage© in a black robe is in terror of the wrath of large congregations, so she claims to have no subject matter jurisdiction.
Citizen_X
@dmsilev: You people are cynical. I want to be able to trust Justice Scalia.
So I insist upon testing the distance with a trebuchet.
C.V. Danes
I’m sure the Supremes are just waiting for some “closely held” corporation to voice a religious objection to having someone working for them who is in a same sex marriage…
burnspbesq
@Botsplainer:
I’m old enough to remember when people had to “move” to Nevada in order to get divorced. Is a “move” to a state that wil give FF&C to your client’s marriage long enough to end it a viable option?
CASLondon
Indiana is not worse than Utah. Its quite small town midwestern conservative, but they’ve kept the fringe denominations and polygamy to a minimum. A handful of Amish up North.
I’m pretty sure you can get Gay Married in Indiana, as long as you aren’t weirdos who don’t like high school/college basketball. Now that would be a deviation too far.
Matt McIrvin
I thought things were going to get violent in Massachusetts in 2004 (we did and do have some hardcore homophobes in this state). There were some polls showing about as much public support for same-sex marriage in MA then as Utah has now, though there was a huge spread and I think there was a temporary backlash after Goodridge initially came down.
Things did not get violent.
CONGRATULATIONS!
@mai naem mobile: Will not happen. That will take all the dirty thrill out of things – and at their age, that’s all they have left.
Botsplainer
@burnspbesq:
Its the duration that is the killer.
NCSteve
Where the Circuit Courts of Appeals are 5-0, it’s very difficult for the Court to take the case in order to reverse them without turning it into another big high profile hit to the Court’s prestige and legitimacy and no point in taking the case to affirm them (and incurring the wrath of the other side).
Until the Fifth Circuit creates a split, they’re going to stay out of it. Once the Fifth Circuit creates a split, they’re going to have to dive into it.
Good thing there’s not a dime’s worth of difference between Democrats and Republicans so we can all just stay home in November and let the R’s take the house of Congress that has to confirm Supreme Court nominees. And what could go wrong, when the nine we have now are all so young and healthy and fit?
cminus
@CASLondon: Yeah, I wouldn’t say Indiana is worse than Utah either, or Oklahoma for that matter. In addition to Indianapolis and Bloomington, Indiana also has the region in the far northwest and north-central parts of the state that’s essentially an extension of Chicago. Heck, they’ll even let you get married if you don’t care about high school or college basketball! (Failure to care about Notre Dame football, on the other hand, will get you ridden out of town on a rail.)
Suffern ACE
@burnspbesq: As much as I’d enjoy the pleasure, I would question the lesbian couple who would want Sam Brownback at their wedding. It is their day after all. Why invite a party pooper who isn’t even the relative who has to be there?
PhoenixRising
@Botsplainer: Are you getting support from Lambda and NCLR? They’ve got lots of past cases with similar fact patterns to draw on, to pressure that judge.
@burnspbesq: That’s been done, and tried, in 4 states. Results vary. The problem is that KY does, in fact, have jurisdiction and you’ll play hell trying to convince NJ (f’rex) otherwise.
Botsplainer
@PhoenixRising:
Oh, she’s aware of the case law. My opposite number and I schooled her on all of it – he’s half helpful but still shivved us over starting the clock on maintenance (which I understand and approve of as good lawyering). It is just that she is terrified of the electoral consequences of doing anything, and no out of town organization can threaten her electoral future like her local large church congregations can. I told her that she can rule for it or against it, but that she couldn’t ignore it. In order to do that (ignore it), she has seized on something that is novel and blatantly incorrect – she claims to have no subject matter jurisdiction, which would keep us in appeals for eons. I’m going to have to file a writ with the court of appeals in order to get her to make an honest to god ruling (which will be against us) in order to get the appeal working and the clock ticking on maintenance.
Its fucked up. My opposite number tells me she’s gutless, and I have to agree.
shortstop
Wow!
@David in NY: I’ve been wondering if they were delaying this a bit waiting for the decision from the 6th, which could come at any time. (Not sure why people here are invoking the 5th circuit? Only the 6th and 9th are now waiting for appellate decisions, if I’m remembering correctly.)
Re the number of states: Also worth noting is the percentage of Americans who now live in states with marriage equality. I believe it was 44 percent before today. HRC or Freedom to Marry will have the new number, which will be heartening.
mai naem mobile
I agree with the USSC pulling a head fake_l but I’m not concerned about abortion becoming illegal at this point, I think they’re going after Ocare on the subsidies being illegal case.
Joey Maloney
@Suffern ACE:
Were it me I’d want him to be the altar. Not on the altar. The altar. Wearing a ballgag and a ponyboy buttplug. And then after the vows we would take turns eating sushi off his (freshly-shaven) back.
Corner Stone
@Joey Maloney: Good.God.
burnspbesq
@Joey Maloney:
Did you bring enough brain bleach for everyone?
scav
Well, Brownback could definitely count towards the ‘something blue’ part of the traditional rhyme. Sort of a white ambient noise water feature with his tears dripping onto carefully chosen stones. (granted, his side b might be a bit more shouty but that could work well for the more energetic part of the party). Drag him there without pay and he’d cover ‘borrowed’ as well.
PhoenixRising
@Botsplainer:
Well, okay then. This family is beneath her, not in a fun way.
How embarrassing for the Commonwealth.
fidelio
@CONGRATULATIONS!: Besides, I doubt Lindsay can keep John in the style to which he is accustomed. I don’t think Cindy will be that generous with the alimony.
boatboy_srq
@dmsilev: Oh if only. I think Throwing the Justice is replacing the Caber Toss at the Highland Games.
boatboy_srq
@Joey Maloney: Not shaven. Waxed.
jake the antisoshul soshulist
@Botsplainer:
Is that here in Bowling Green?
It does not seem to be getting local coverage.
shortstop
@CONGRATULATIONS!: @fidelio: John’s not into it; he’s got his own idea of manly manness, which is to fuck women while hating on them. He regularly throws Lindsey a bone of hope just to keep him panting and servile, which works out well when McCain needs backup on some wrongheaded foreign policy.
Randy Khan
First, the post that said that every state in those circuits will end up having same-sex marriage in the near future is right. I’m not sure of the status of the cases in those states, but it seems likely that there will be at least one in each of them, and you can bet that the plaintiffs are preparing summary judgment motions as we speak.
The 5th Circuit does seem like the best bet to get a contrary decision, and that might explain why the Supreme Court turned down these cases now. There isn’t likely to be a Court of Appeals decision there for a while, since the district court case is so recent, and almost certainly the appeal decision will not come soon enough to hear the case at the Supreme Court this term. Of course, there’s still the 6th Circuit case, which was argued in August, but it’s not nearly as good a bet as the 5th.
Botsplainer
@jake the antisoshul soshulist:
That it is. I haven’t ginned up anything coveragewise because that never really has been my thing – plus, I think it would ratchet local pressure in a bad way and that isn’t good for any of the litigants.
shortstop
@Randy Khan: Thanks. Will be interesting to see what the 6th does.
Calouste
@burnspbesq:
I don’t think either of those arguments have stopped GOP AG’s from going to court before.
Joey Maloney
@boatboy_srq: Let’s compromise on belt-sanded.
dmbeaster
@David in NY: A split in circuits usually compels review, but they take cases all the time without that element.
gelfling545
@kindness: But please throw him, nonetheless. You never know.
dmbeaster
You cannot read too much into denial of review. It takes at least four to approve review, so at least six said no. How many no votes and who they were is not revealed. Sometimes a justice might add remarks about the decision, but none did here. They could grant review later, which if they overturned it would be hugely cruel to those who married during the period of delay.
Blue in SLC
@Matt McIrvin:
Already happening in Utah. SLC, at least, is issuing licenses to same-sex couples as of this morning:
kathy a.
@Matt McIrvin: This really does flip all states in the circuits finding it unconstitutional to ban gay marriage. This thing is over. It has been over since the DOMA decision.
If a circuit comes up with a contrary decision — hey, banning gay marriage is fine! — SCOTUS might take it up just to clarify for the non-reasoning, but I do not see the big court suddenly deciding gay marriage bans are consistent with the constitution. There would be a huge amount of chaos if they did that. If they were going to come to a different conclusion — some bans are ok, others not — this would have been a good time to step up and accept the cases before them. They did not do that.
dmbeaster
@kathy a.:
Just like abortion, gay marriage could be taken up later and a huge blow dealt to it. I am sure consersative legal advocates are busy schemeing a counter-revolution that might give conservative justices a way to mess with the issue.
It is worth noting that some conservatives have broken ranks on this issue, Ted Olsen for example.
Matt McIrvin
@kathy a.: I suppose one way it could happen would be if the composition of the Court changes sufficiently before the circuit split emerges and comes before the Court (say Jeb Bush becomes President in 2017, and Ruth Bader Ginsburg and Stephen Breyer both die or retire at that moment and get replaced by two more hardcore cultural conservatives, then the Fifth Circuit rules to allow same-sex marriage bans).
But the clock is ticking on that scenario. The issue may be forced too soon.
kathy a.
The 9th circuit recently dismissed a challenge re Oregon, and then heard arguments a month ago about gay marriage in Idaho, Nevada, and Hawai’i. Here’s the page: http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000735
The three cases that were argued were before Reinhart, Berzon, and Gould — and they are available in video and audio on the 9th circuit website. I recommend the Nevada argument, which is really really good. So, I expect the 9th will weigh in sometime soon, but its reasoning will be totally in line with all the other circuits that have found a constitutional problem with denying marriage to same-sex couples.
[The Hawai’i argument is mostly about whether the whole issue is moot in Hawai’i; and the Idaho argument runs for over an hour, featuring a large guy who practically breaks into tears about democracy and the fabulosity of children being raised by a bio couple.]
Anyhow, dmbeaster — yeah, a lot of conservatives have friends and family who turned out gay, and they like those people! And this issue is really not like abortion; to undo the tide of pro-equality rulings would create untold chaos for couples who are legally married, and whose marriages are recognized under the ruling last year that DOMA was unconstitutional.
Matt — no thing can be for certain, but I don’t see that kind of shift happening so fast. If there is going to be a circuit going rogue, it will likely be in the near future.
Gex
@C.V. Danes: no need. ENDA hasn’t been passed. Most states don’t have employment protections for gays. A friend of mine noted that he now lives in a state that he can marry in, but doing so could get him fired for being gay.
gorram
@Sherparick: I think that what you’re talking about was demonstrated by his support for dismantling sodomy laws, but the fact that he’s not publicly calling for the advancement of this to the Supreme Court in order to strike down these marriage bans kind of underscores a limit pretty similar to his backsliding on abortion (you can see this in his fascinating movement from upholding Roe v Wade in Planned Parenthood v Casey to now understanding that decision as somehow limiting Roe). At his core, he’s always been a libertarian on these issues, supporting freedom from government intrusion in only the most technical terms (and when state governments or private actors make things pretty inaccessible but not *impossible* to access he always lines up with the conservatives).
Basically, this decision was a win for LGBT people, yes, but largely at the cost of a decision to more effectively and broadly support us, so contrasting it with his actions on race and gender (where he supports equality in a very generic theory but virtually never in practice) seems kind of to miss an underlying similarity to how he approaches things, which is to say as a libertarian but not a liberal.