Marriage Ban Stays Down In Wisconsin and Indiana: What Next, SCOTUS?

Olga Maltseva/AFP/Getty Images

Olga Maltseva/AFP/Getty Images

UPDATE: The U.S. Court of Appeals in Chicago joined many across the U.S. in striking down same-sex marriage bans in Wisconsin and Indiana as infringing upon the constitution rights of residents. The trial saw by now familiar comparisons of gay marriage bans to the historical ban of interracial marriage in the United States. While state attorney generals are not required to defend their state’s bans, Wisconsin Assistant Attorney General Timothy Samuelson did so with another familiar argument: tradition and historical precedence. Judge Richard Posner stated, according to The Associated Press, that the marriage bans were “savage discrimination.”

So far gay marriage has been made legal in nineteen states: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and the District of Columbia. With the addition of Wisconsin and Indiana, that makes twenty-one. Like other cases, appeals for Wisconsin and Indiana are both possible and likely, meaning the Supreme Court will have the final say as it will in deciding on appeals across the U.S..

Last month the Fourth Circuit Court’s ruling on same-sex marriage was stayed, meaning couples eager to tie the knot across the Virginia once more had to wait out the legal doldrums in hopes of a gust of wind. The Virginia voter-led ban on gay marriage was overturned earlier. Following the ruling, the Fourth Circuit Court of Appeals refused to place a freeze on marriages — pending appeal — in contrast to what many other states have done. This led to a great deal of controversy. Gay marriage opponents claimed it would complicate matters should an appeal overturn the Fourth Circuit’s ruling and that it would place many in legal limbo. Victoria Cobb, president of the Family Foundation of Virginia, used the word “arrogance” in speaking with The Washington Post, stating that the judges were unnecessarily complicating matters when the final decision would not be theirs to make. All the hubbub was, of course, pointless, because ultimately the choice on whether or not to stay the decision pending an appeal was put to the Supreme Court in an application from Senior Counsel Byron Babione for the Alliance Defending Freedom. The Court’s decision to stay the ruling was hardly surprising; it had done so in previous cases, specifically Utah where 1,000 marriages that had taken place were not recognized due to the Supreme Court granting a stay. But the Supreme Court’s Order is both interesting and frustrating simultaneously because when it comes to same-sex marriage, states’ rights, and legal simplicity, SCOTUS is giving America a bad case of whiplash — and here’s why.

States’ Rights Over Equal Rights

The Supreme Court’s initial decisions on gay marriage — striking down the Defense of Marriage Act and ruling against Proposition 8 — left all the clarifying legwork to be done by states. These were not final deciding blanket rulings on same-sex marriage. The court knew that by leaving same-sex marriage open for states to decide upon, it was putting the choice in their hands. When Governor Butch Otter of Idaho filed for a stay on his state’s gay marriage ruling, he said that, “In 2006, the people of Idaho exercised their fundamental right, reaffirming that marriage is the union of a man and a woman.” In short: the state and its people made a decision, a decision the Supreme Court basically demanded they make themselves, knowing the decision in Idaho would likely clash with decisions in, say, California. He called the later ruling that the state’s ban on gay marriage was unconstitutional a “small setback in a long battle that will end at the U.S. Supreme Court.” That very much appears to be the case — that the fight for equal rights and the continued efforts against gay marriage will eventually come to a uniform climax at the national level. But this is interesting, because as much as the battle will end at the Supreme Court, it was also be necessitated by the Supreme Court.

States Rights Are Plural

While SCOTUS’ decision to freeze Virginia’s same-sex marriages for the moment may have legally simplified matters given the fluid and changing nature of the case, it also reminds us that we’ve gone from a SCOTUS emphasis on states’ rights to SCOTUS telling lower courts that their ruling must not be enforced until it has made its own ruling. This is a bit of a simplification, but ultimately the irony still holds. If states were given the power to make their own decisions and appealed — predictably — as a violation of equal rights, state rulings were bound to conflict. Even state Attorney Generals have conflicted in their behavior. Some have defended their state’s rulings, some have not. This is not surprising is the main point. States rights are plural, therefore they are able to directly contradict each other. Of course, major civil rights issues aren’t going to be allowed to directly conflict — it would be a legal, social, and political nightmare. To borrow a comparison from Attorney General Eric Holder, you could hardly have separate but equal policy allowed in half the United States. Admittedly, this needn’t be a critique of the SCOTUS exactly. The inconsistent, complex, and clumsy process by which same-sex marriage has been tried, retried, delayed, and debated is frustrating. But that doesn’t mean the Supreme Court hasn’t had a strategy or that this wasn’t intentional. Perhaps the Supreme Court recognized that the social climate towards LGBTQ rights would change given time — and it has changed over the years, becoming far more widely accepted across age groups, religions, and party identification, though there are, of course, still many who oppose gay marriage and LGBTQ rights — and that having placed the issue at the mercy of the states it would be easier to make, enforce, justify, and accept a major Supreme Court ruling on same-sex marriage. More From Politics Cheat Sheet:

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