Here’s How the Supreme Court Left Same-Sex Marriage In State Hands

Nicolay Doychinov/AFP/Getty Images

Nicolay Doychinov/AFP/Getty Images

After many legal battles at the state level, Second Circuit Courts appealed to the Supreme Court for a final decision. While quite a few had seen same-sex marriage bans struck down for their region, a freeze was placed on marriages in most states in order to hold off legal complexities while states awaited SCOTUS’s final decision. Recently, the Supreme Court finally made that call, though the choice was made in the most indirect and uninvolved way possible. Rather than rule on the equal right to marry, the court made public that it would remain uninvolved and would not hear the appeals. Instead, the justices remained consistent with their previous decision to leave the social and civil rights issue in the hands of each state government. Indirectly, this validated the lower court’s rulings in favor of same-sex marriage.

In short, it means the decision of federal appeals courts in Virginia, Indiana, Wisconsin, Utah, and Oklahoma will remain standing; same-sex marriage will be legalized within these states. The states falling within those higher courts’s jurisdiction — Kansas, Wyoming, Colorado, North Carolina, South Carolina, and West Virginia — will also have legalized same-sex marriage, or that was the general consensus for a short time after the ruling.

While some states have been quicker to open doors to marriage applications than others, the state’s with blanket rulings applied to them are thought to be headed in the same direction before long, meaning same-sex marriage will be allowed in thirty states, up from nineteen previously. Following the ruling, many federal court of appeals were quick to push their own rulings through in favor of same-sex marriage now that the Supreme Court has said (or refused to say) its piece. This hasn’t gone over completely smoothly though, and the legal process remains changeable and fluid for the moment. Supreme Court Justice Anthony Kennedy recently stepped in to place a freeze on the 9th U.S. Circuit Court of Appeals pro-same-sex marriage ruling for Idaho and Nevada. Soon after the ruling went into effect, Idaho state officials put out a plea asking for a delay so that they could re-challenge the 9th Circuit ruling in front of the en banc Ninth Circuit and place it once more before the Supreme Court. Officials in Idaho are arguing that “if it gets to the Supreme Court” which just denied other appeals, it “is narrower in scope than the other same-sex marriage cases that the Justices had refused to review on Monday,” according to the SCOTUS blog.

Clearly the battle for same-sex marriage is far from over, and while the Supreme Court’s decision to indirectly validate the rulings of so many other courts in the U.S. is a major step for LGBT rights, it also constitutes a failure on the part of SCOTUS in ruling on equal rights for Americans with a strong unified voice. Others might argue that it’s not a failure on the part of SCOTUS but rather a success in empowering state’s rights. The former is closer to the truth when one takes into account the unequal defense of minority rights.

Prior to the latest Supreme Court decision, gay marriage was also a states rights issue; a policy decision made on a case by case basis and influenced by the values and viewpoints of each state going t0 trial over marriage bans. This latest hands off decision-that-was-not-a-decision has done little to change that situation. The state-by-state approach was clearly the intent of the Supreme Court when it ruled against the Defense of Marriage Act, as is clear based on the language the court used. Justice Anthony Kennedy ruled that federally refusing to recognize marriages “impose[s] a disadvantage, a separate status.” But he also made it very clear that this would fall in the hands of states. “The significance of state responsibilities for the definition and regulation of marriage dates to the nation’s beginning,” said Kennedy. Looking back at this, it isn’t necessarily surprising that the court remained in line with it’s previous intent to leave the decision up to the states, but it has been a disappointment to many equal-rights activists and conservative state residents who hope one day to marry, but are currently barred from doing so.

For over a year states have been taking on the issue separately, as couples and organizations sue the state to overturn the marriage ban. Unsurprisingly, this has led to a variety of responses from states with different religious backgrounds and varying degrees of conservativeness in their legal systems. Even for states that had ruled against the ban, the timeline before marriages were allowed was dependent on appeals, and many states placed freezes on marriages until the Supreme Court had said its piece. This freeze was symptomatic of state members hesitancy to allow marriage and the potential limbo subsequent appeals and rulings could place married couples in if rulings were reversed.

Idaho, for example, had its marriage ban overturned — however, the 9th U.S. Circuit Court of Appeals ruled that marriages would not be allowed until a decision had been made on whether or not to appeal the case. Compare this to Oregon, where no government entity wanted an appeal and the National Organization for Marriage, which tried, was rejected. Pennsylvania saw a federal judge strike down its ban on same-sex marriage, and the district judge, John Jones, had no such qualms about allowing marriages. Judge Jones ordered that all could marry immediately. “By virtue of this ruling, same-sex couples who seek to marry in Pennsylvania may do so, and already married same-sex couples will be recognized as such in the Commonwealth,” he said, according to CNN.

In this way, it’s clear that a big part of state cases have to do with the politics within the state government. For example, state attorneys general don’t uniformly defend their state laws. “If I were attorney general in Kansas in 1953, I would not have defended a Kansas statute that put in place separate-but-equal facilities,” said Attorney General Eric Holder, advising his state counterparts on defending marriage bans in their states. Those states with more conservative attorneys general have been considerably more likely to defend their state bans; for example, Wisconsin’s attorney general J.B. Van Hollen (R) compared to Oregon’s AG, who has left the ban undefended.

As an empowerment of the state, this is exactly as it should be. That said, there is something truly unjust about state partisanship or bigotry preventing some state couples enjoying equal rights, while others are lucky enough to reside in an area with more LGBTQ friendly politics. It is especially unfair given that the laws on how marriage benefits translate over state borders are somewhat uncertain.

It’s not clear. The federal agencies are going to have to decide, and different agencies may decide differently. Congress could always step in, and eventually you’re going to have federal court ruling. There may be additional protection from certain federal agencies, but it’s not clear at this point which ones or when,” said Neil Siegel, law professor at Duke, to CNN.

What it comes down to in the end is not an issue of fairness or morality, but whether this is a state’s rights situation, or a case for equal rights and protection under the constitution, with marriage bans across the U.S. all violating the constitution. In cases where the law is more fluid and interpretable the argument becomes a political one, which is why 18 states have legal same-sex marriage and 32 states still have a ban in place — though some are in the process of overturning it or considering appeals.

For proponents of equal rights, there’s good news on that front polling wise. According to a Gallup poll published Wednesday, a new height of public opinion favors same-sex marriage. Back in 1996, there were 68 percent of respondents stating they believed same-sex marriage should not be valid, with only 27 percent saying the opposite. In 2014, 55 percent say same-sex marriages should be valid and provided with the same rights as heterosexual marriages. The first state legalized same-sex marriage in 2004, when pro-same-sex-marriage opinion reached 42 percent.

Unsurprisingly, it is the younger generations that are supporting same-sex marriage legalization with the highest numbers, with 78 percent of 18 to 29 year olds in favor, 54 percent of 20 to 49 year olds, 48 percent of 50 to 64 year olds, and 42 percent of those individuals 65 years and up — though Gallup notes that more in all age groups support equal rights to marry than in 1996.

The partisan split is also clear. As of last year, only 26 percent of Republicans were in favor of same-sex marriage being legal, while 58 percent of Independents were in favor and 69 percent of Democrats were in favor — a split that is certainly apparent in some states’ handling of the marriage ban compared to others.

More From Wall St. Cheat Sheet:

Follow Anthea Mitchell on Twitter @AntheaWSCS