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Supreme Court may have decided gay marriage issue by not deciding

Supreme Court may have decided gay marriage issue by not deciding

Rejects cert. petitions in all pending cases in which bans on gay marriage stricken as unconstitutional.

Many if not most observers expected the Supreme Court to take at least one of the cases for which review was sought in which the issue of whether same-sex marriage bans were constitutional was squarely presented.

None of the Supreme Court’s decisions in DOMA or the Prop. 8 litigation decided that issue.

But the Supreme Court did not take any of the cases, leaving in place Court of Appeals decisions that seem to clear the way for same-sex marriages in numerous states.

ScotusBlog reports:

The Supreme Court had issued the first round of orders from the September 29 Conference last Thursday, adding eleven new cases to its docket for the new Term.  Many people had anticipated that one or more of the same-sex marriage petitions might be on that list, but the Court did not act on any of them at the time.  Last month Justice Ruth Bader Ginsburg had suggested that the Court might not step into the controversy at this point, because there was no disagreement among the lower courts on that issue.  Today her prediction proved true, with the Court denying review (without any comment) of the seven petitions:  Bogan v. Baskin (Indiana); Walker v. Wolf (Wisconsin); Herbert v. Kitchen (Utah); McQuigg v. Bostic (Virginia); Rainey v. Bostic (Virginia); Schaefer v. Bostic(Virginia); and Smith v. Bishop (Oklahoma).

The NY Times explains the impact:

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.

The move will almost immediately increase the number of states allowing same-sex marriage from 19 to 24, along with the District of Columbia.

The justices had earlier acted to stop same-sex marriages in Utah and Virginia, issuing stays to block appeals court rulings allowing them. Other appeals court decisions had been stayed by the appeals courts themselves.

Jonathan Adler writes that the Supreme Court might still take a case in the future, but I don’t see how that is realistic considering how expansive the pending cases were in terms of geography. In the states for which review was sought there will be marriages undertaken, a complicating factor if the court were to rule in the future that same-sex marriage bans were not unconstitutional.

Update: John Hinderaker at Power Line argues that if the court had taken the cases, the result (pro-gay marriage) was inevitable, and that one of the 4 conservative Justices must have voted not to take the case in order to avoid that result (4 Justices need to vote to take a case):

The Supreme Court opened the gay marriage floodgates last year, when it ruled in United States v. Windsor that major provisions of the Defense of Marriage Act were unconstitutional. Windsor purported to deal only with the rights of gay couples that already were legally married under the law of the state in which they reside….

But Justice Scalia, also dissenting, wasn’t buying it. He wrote that the logic of Kennedy’s opinion inevitably implies that a constitutional right to gay marriage must be recognized….

Lower courts have agreed with Justice Scalia, relying heavily on Kennedy’s Windsor [DOMA] opinion in finding a constitutional right to same sex marriage. I don’t see how anyone can read Kennedy’s opinion [in Windsor], which can reasonably be summarized as Hooray for gay marriage!, without concluding that the present Supreme Court would rule, 5-4, that a federal constitutional right to same sex marriage exists.

So my guess is that one or more of the Court’s conservatives voted not to grant certiorari in order to deprive the present court of the opportunity to drive the final nail into the coffin of traditional marriage. If the current Supreme Court issues no further rulings on the subject, Windsor will be its last word, and Windsor says–whether sincerely or not–that it has nothing to do with a right to gay marriage. That leaves a bit of daylight, and it may be that a future Court, with one or more of the current justices replaced by a Republican president, might walk Windsor back from the precipice. That is a slender hope, to be sure, but surely a better chance than giving the current Court a shot at the last remaining issue relating to marriage. Which, I suspect, is why at least one of the Court’s conservatives voted to deny certiorari on the three circuit court decisions.

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Comments

If you choose not to decide, you still have made a choice.

A perverted law is no law at all.

As it turns out, John Roberts is the biggest Supreme Court disappointment for the Right since Earl Warren.

Refusal to take the cases is highly destructive, almost sociopathically destructive lack of moral fortitude and plain human courage, ill-befitting of persons in such high positions of authority and trust. It’s sociopathic because of the great, immediate and pervasive harm of allowing habits or “law” dictas that are destructive to marriage.

3,000 years of Judeo-Christian ethics down the crapper. SCOTUS has just learned a new game …. kick the can down the road.

    wendybar in reply to walls. | October 6, 2014 at 4:49 pm

    Why not, it has worked for this administration.

    Radegunda in reply to walls. | October 6, 2014 at 8:00 pm

    Not just Judeo-Christian ethics, but the commonsense principles of every human society of which we have any record.

    Leftists have been peddling the lie that opponents of gay “marriage” are trying to prevent people from “loving” the person of their choosing. That’s absurd, of course. The issue has always been what specific kind of relationship merits special government protection and societal support. And it bears on the question whether society should actively support the rearing of children in a biologically impossible parody of a “family” that very few children would actually choose.

Lorne Russell | October 6, 2014 at 1:02 pm

Quite frankly I could care less who marries who. I think the majority of Americans feel that way as well. This battle is lost. Time to move on and devote energy and resources to issues that matter.

    The majority of Americans DON’T feel that way. Many of the states that had their gay marriage bans overturned had placed the bans in their state constitutions after proper legislative work and then vote by it’s citizens.
    And the appeals courts have simply overturned and removed entire sections of individual state’s constitutions, nullifying duly conducted state elections.

    And none of this bother’s the Supreme Court.

    In Michigan, the constitutional ban was overturned by a single judge, who declared later in an interview that he did it because he felt sorry for his law clerk , a lesbian who because she was not married was not permitted to adopt a child in the state.

    So we have judges ruling on feeling, basically pronouncing edicts based on their own personal interests. This is not what our founders created.

      The poll results disagree with you when you say “A majority don’t agree”:

      http://www.gallup.com/poll/169640/sex-marriage-support-reaches-new-high.aspx

      55% is a clear majority, like it or not.

      Not that I’m saying that majorities should automatically get their way in all things, which is mob rule. Just putting that out there in the interest of accuracy.

        Ragspierre in reply to Joseph. | October 6, 2014 at 3:23 pm

        We’re talking apples and oranges, and trying to impose a time-shift.

        A majority of POLLING respondents said X.

        A majority of VOTERS in several states said Y.

        There has been a shift between the two events, largely due to a VERY intense campaign of lying, demonizing, and political thuggery by a few militant gay people who want…not tolerance…but approbation from authority.

          anoNY in reply to Ragspierre. | October 6, 2014 at 7:17 pm

          Ragspierre, how does it feel to be losing the fight?

          I just want you to know that winning it feels good…

          Ragspierre in reply to Ragspierre. | October 6, 2014 at 9:31 pm

          Oh, I can well imagine you and the other haters are just delighted.

          And, please, don’t disavow your hatred (i.e. lie). It is evident you hate people who are religious.

          But some “victories” are transitory, and when the wreckage of this stupidity is cleared away in the future, people will remember that marriage is a powerful cultural good, and there never was, and never will be, a “gay marriage”. And marriage is, and always was, a permissive rite and never a “right”. In the interim, more damage will occur and people will be hurt.

        malclave in reply to Joseph. | October 6, 2014 at 6:57 pm

        55% is a clear majority, like it or not.

        Then there shouldn’t be any problem with getting same-sex marriage made legal through normal means, instead of a combination of judicial activism and the SCOTUS striking down the 1st Amendment’s right to petition the government.

      platypus in reply to Uh Huh. | October 7, 2014 at 1:11 am

      I disagree with your description of what actually was accomplished by these fed judges. There is no provision in the fed constitution that can be construed as nullifying state constitutional provisions. If they are nullified in any way, it is ONLY because the particular state involved CHOOSES to dishonor its constitution.

      Some state will stand up and officially proclaim its inherent sovereignty. At that point, all these fake ‘unconstitutional’ decisions will be shown for what they are: the snarling of toothless arthritic aged lions.

      Will the feds use the military against the states? Doubtful, which is why one state should start the process by saying Hell No We Won’t Obey.

        Milhouse in reply to platypus. | October 7, 2014 at 2:06 am

        There is no provision in the fed constitution that can be construed as nullifying state constitutional provisions. If they are nullified in any way, it is ONLY because the particular state involved CHOOSES to dishonor its constitution.

        What are you talking about?

        This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

        There you have it. Not only does the federal constitution trump state constitutions, so does any federal law.

    JimMtnViewCaUSA in reply to Lorne Russell. | October 6, 2014 at 3:46 pm

    For myself, I’d like to give the People a chance to decide.
    For example, in the year that Obama won big the state of CA voted against gay marriage. Yet one gay judge was able to overturn that decision to the job of the media and other elitists.

      What exactly does it matter that the judge in CA was gay? If your theory is that his judgment was compromised due to his sexual orientation, then that theory applies equally well to a straight judge…

        Ragspierre in reply to anoNY. | October 6, 2014 at 9:24 pm

        Not at all. Read the opinion. It is evident the judge was following his own agenda.

        Most straight people really don’t care to displace a constitutional amendment passed by the people of a state.

    tarheelkate in reply to Lorne Russell. | October 6, 2014 at 4:23 pm

    The problems with radical changes to family law are the intended or unintended consequences. With no-fault divorce in place, we are seeing more and more cases of parents leaving their marriages, marrying a member of the same sex, and hauling their minor children from the first marriage into households which, at a minimum, violate the religious beliefs of the divorced parent. And this says nothing about all the wedding-related businesses who have to serve any and all or go out of business, and the religiously-affiliated child placement agencies who can no longer do their work if they refuse to place children with same-sex couples.

    And what’s sacrosanct about “two”? Polygamy is next, and also incest. Germany reportedly is on the verge of legalizing adult incest because nothing should be allowed to interfere with individual sexual self-actualization.

    I agreed with tolerant treatment for adult consensual activity. The radical lobby doesn’t want tolerance. It wants forcible endorsement at the cost of loss of freedom and livelihood for dissenters.

      “into households which, at a minimum, violate the religious beliefs of the divorced parent.”

      Oh noes, the religious parent isn’t able to indoctrinate their child about the all-powerful sky fairy?

    Radegunda in reply to Lorne Russell. | October 6, 2014 at 8:19 pm

    It matters very much if the next generation is raised to believe that “two daddies” with artificially acquired children are just as much a “family” as the normal kind. It certainly matters to the children raised with “two daddies” or “two mommies.” Now that the first generation of people raised by those weird parodies of families are reaching adulthood, they’re starting to write about how uncomfortable and suboptimal it was for them, and how they would have preferred a mom and a dad.

The Constitution does not say anything about personal relationships, other than an implied statement of evolutionary fitness in the preamble: “secure the Blessings of Liberty to ourselves and our Posterity”.

They decided to delegate responsibility, and shift reconciliation to a future generation/president. In the meantime, society will limp forward attempting to cope with the progressive incongruencies engendered by selective exclusion.

That said, I think the greater moral concern is the normalization of sperm banks and womb banks; as well as women’s exclusive right to commit or contract for murder under the First Amendment, specifically the religious clause, which is upheld under a further right to private adherence to a sincerely held faith.

Christian business owners and employees should be on notice now. And thanks to the support of many foolish Republicans, conservatives and libertarians, we will see what happens to the First Amendment when you can no longer make a moral claim about homosexuality being wrong. Try keeping your freedom when the moral abyss opens up and everyone is encouraged to satisfy their sexual desires, no matter how perverse. Get ready for polygamy and incest.

http://theweek.com/article/index/268985/how-liberals-are-unwittingly-paving-the-way-for-the-legalization-of-adult-incest

    What do you mean by “when you can no longer make a moral claim about homosexuality being wrong”? There is no prospect that you will ever not be able to make that moral claim. Nobody in America has ever been prosecuted for expressing that opinion, and nobody ever will be. The right of free speech is not under any threat at all.

And now that gay marriage is legal, why isn’t incest, polygamy, etc. legal? There are no arguments that can make the case to prohibit such unions.

Nor will churches be able to continue to discriminate in offering membership or marriage ceremonies to gays. Since the Courts simply make up rights out of whole cloth, the right of a church to determine it’s beliefs will be overturned by the right of a selective few to demand accomodation.

    Spiny Norman in reply to Uh Huh. | October 6, 2014 at 2:29 pm

    The Free Exercise clause has been dead for years. Recent events have only confirmed its demise.

    Up next: churches will likely lose their tax-exempt status if they refuse to perform and sanctify same-sex marriages. Militant theists are probably salivating over the prospect.

      Spiny Norman in reply to Spiny Norman. | October 6, 2014 at 2:30 pm

      “Militant atheists”, rather.

      (A comment edit function would sure be handy.)

        Henry Hawkins in reply to Spiny Norman. | October 6, 2014 at 2:41 pm

        THANK YOU for specifying ‘militant’ atheists. I’m an atheist but I’m pro-traditional marriage and I’d never support taxing churches. The militant atheists have a purely liberal agenda, but the vast majority of us are not activist at all and generally carry center-left to center-right positions. About…. 10% ? … of us are conservative like me. Lot of libertarians among non-militant atheists, too. In other words, we’re an attainable demographic for the GOP.

        Heh. How the world changes. The GOP as a party has said nothing against atheism, but has openly, verbally, on tape and in print told conservatives to f**k off, essentially. I mean, WTF?

      Milhouse in reply to Spiny Norman. | October 7, 2014 at 2:23 am

      The Free Exercise clause has been dead for years. Recent events have only confirmed its demise.

      Really? When did it die? Can you give any examples of its death?

      (Remember that the decision that it doesn’t prevent laws that are not targeted at religion and apply equally to everyone was made in 1878. And the maintream Xian churches were happy with that decision. So don’t bother providing such examples; I want an example where a law targeted at a religious practise was upheld.)

      Up next: churches will likely lose their tax-exempt status if they refuse to perform and sanctify same-sex marriages.

      That’s not possible. Either all churches lose it, or all keep it; it can’t be made to depend on a church’s policies. That’s clear 1st amendment law.

    JimMtnViewCaUSA in reply to Uh Huh. | October 6, 2014 at 3:51 pm

    You know, married people can get medical coverage for other family members.
    I think people should be allowed to marry their Mom and Dad in order to extend coverage.
    Also, they should be allowed to marry their pet dogs and cats so they are eligible for veterinary coverage. It’s only fair!

    None of this gay marriage stuff has been thought through. And nobody in power seems to be in favor of giving the People a voice.

      I had to laugh when you claimed that gay marriage has not been “thought through,” considering your thoughtless arguments concerning marrying cats and dogs…

        Radegunda in reply to anoNY. | October 6, 2014 at 8:10 pm

        I’ve seen literature aimed at young children asserting that a person can “marry” anyone or anything that person “really loves.”

        Not long ago, even most gay people thought it was ridiculous for a man to “marry” another man.

        SmokeVanThorn in reply to anoNY. | October 6, 2014 at 9:47 pm

        Then tell us why the rationale for homosexual marriage doesn’t also justify incestuous marriage, plural marriage and marriages of convenience between those who aren’t sexually involved.

        Or are you incapable of anything other than puerile insults?

    Milhouse in reply to Uh Huh. | October 7, 2014 at 2:17 am

    Nor will churches be able to continue to discriminate in offering membership or marriage ceremonies to gays.

    Since when? You have absolutely no basis for that claim. You’re just scaremongering.

Hello Article V Convention!

Humphrey's Executor | October 6, 2014 at 1:37 pm

The rationale for upholding a “right” to gay marriage eludes me and the decisions are all over the place. Many of the decisions say denying gays the right to marry doesn’t even withstand the “rational basis test.” Seriously? If nothing else, its perfectly rational for a state to want to avoid expanding costly marital benefits to a whole new class of married couples — but this is an argument I’ve not seen any state make, why I have no clue. And the heightened or strict scrutiny tests don’t work because gays cannot now be be deemed a “suspect class” — they clearly wield too much political power to be considered disadvantaged. And if marriage to the person you love, whoever that may be, is a “fundamental right” under 14th amendment, then how can you justify laws against polygamy or marrying cousins?

However, a five-four decision either way would either tear the country apart or seriously damage the rule of law, or both. When the SCOTUS tried to “resolve” slavery (Dred Scott) and abortion (Roe v Wade) it only made things worse. In some matters the SCOTUS just has to butt out and let the political process do its job. This is on of those matters.

This whole thing has nothing to do with marriage. It is all about acceptance and approval. It is not enough to simply accept homosexual relationships via domestic partner laws, the agenda is demanding emotive approval. They want to move beyond, “It’s OK” to “I endorse and emotionally approve of homosexuality”.

You can call a fish a giraffe, but that does not make it a giraffe. It is still a fish.

    Spiny Norman in reply to Anchovy. | October 6, 2014 at 2:33 pm

    Militancy is usually not the most effective way to achieve “acceptance”, and certainly not “approval”. But here we are.

    Radegunda in reply to Anchovy. | October 6, 2014 at 8:07 pm

    Not just endorse and approve, but actively support and promote in a professional capacity on demand.

Henry Hawkins | October 6, 2014 at 2:51 pm

Twenty years from now the shock and novelty of legalized same sex marriage will have worn off, the gay divorce rate will have risen as high or higher than the rate for heterosexual marriages, and everyone will look back and chuckle over this historical fight over who gets the right to voluntarily occupy the tenth circle of Hell.
____________________________________________________

The crime to me is about states’ rights.

    platypus in reply to Henry Hawkins. | October 7, 2014 at 1:23 am

    There is no rush to get married by anyone but certainly not the rainbow crowd. We legalized SSM here in Washington state a couple of years ago. The law even states that at a certain period of time registered domestic partnerships ‘convert’ to marriage if not already done by the participants.

    How many SSM have been done? 0.25% of the eligible pairings, at last count a year ago. Somebody care to tell me again exactly who wants SSM? It doesn’t appear to be those who can do it.

      siguiriya in reply to platypus. | October 7, 2014 at 2:41 am

      Platypus writes: “Somebody care to tell me again exactly who wants SSM? It doesn’t appear to be those who can do it.”

      That’s because so-called same-sex marriage is not primarily about marriage. It’s about giving legal support to the idea that sterile same-sex relationships are “the same as” and “just as valuable” as potentially reproductive heterosexual relationships. It’s a dumb idea, literally unthinkable throughout history.

    I agree that it is a state’s rights issue, not a federal issue. The states should decide whether or not they want to become the next Sodom and Gomorrah.

    An interesting side note:

    http://kingdomventurers.com/2014/09/28/double-closeted-and-doubled-down/

But one more step toward mandatory gay marriage.

TR was right. Judicial decisions
Should be subject to plebiscite. I’d make it 5-4 decisions only, once a year, all voting in person with confirmation of citizenship.

I am not sure how the Supreme Court is gong to be able to continue its increasingly contradictory sets of decision. If a state cannot pass laws that govern institutions like marriage or regulate sexual relations in general, not even on the basis of biology and expediency as well as state interest, what would the basis for continued regulation?

If simple consent is the only consideration, how can we maintain p[rohibitions on group marriage, other forms of bigamy, incest, and pedo and herbaphillia? I mean there doesn’t seem a reason why a child cannot marry their own parent, or even both of them, and their brothers, sisters and extended family at the same time? You can easily deal with the genetic issues with testing, if they toss that out there. But whats to stop an adoptive single parent from adopting young children, raising them for incest and then marrying them the second they can legally sign yes on the marriage or sexual consent form?

I know this is all absurd, but thats the logical conclusion of the decisions they are rendering, so this is not a slippery slope. They tossed out centuries of jurisprudence to come to their current stance and have provided no rationale basis for their current stance, which appear to codify their own preferences over the people’s elected representatives. I don’t view this as something that is unlikely, but rather likely. I have known people who were abused sexually by their family and extended families, and how parents are capable of brainwashing their kids into thinking its okay to have sex with their family.

Part of society, and what has made america what it is today, was to say no all sexual relationships are desirable in society and should be permitted or even encouraged. That the satisfaction of all sexual desires one can not serve the greatest purpose unto itself. These decisions are atrocious.

You are citing one poll taken last May. Yet there was another poll, taken in the past month that shows support for gay marriage dropping.
Polls are one thing, actual election results are another.

The courts have said that prohibiting homosexuals from marrying another homosexual is a violation of the equal protection law. Which on it’s face is absurd. There isn’t a state in the union that prohibits a homosexual from marrying.
What the state regulated and applied to EVERYONE applying for a marriage license was who you are marrying. To be eligible to marry, both individuals getting married had to be mentally fit(no diagnosis of retardation or other mental incapacity that would render one from understanding a contract and giving consent), no communicable diseases that affect the other person and offspring, and needed to be of legal age(back to the contract thing again) and opposite sex.
The opposite sex requirement has been not just the definition of marriage but it was why marriage was created, sanctified and then legalized for thousands of years.
Now, due to a dozen or so individual and panel judges across the country, the opposite sex requirement has been removed, which destroys the basis for what marriage was designed.

If any of the above requlations for marriage can be removed under the guise of those regulations somehow is treating individuals unequally(try to actually argue that, when the requirement applies to every individual irrespective of who they like to have sex with), then any and all can be removed. To leave an age requirement is now unequal treatment to a 13 year old American citizen, because they can’t help being 13….Being retarded or of low mental IQ is something that an individual cannot help, why should they not be equal to someone with a normal IQ?

We are on the path to hell….

    Radegunda in reply to Uh Huh. | October 6, 2014 at 8:05 pm

    The pro-gay-marriage lobby tries to make the “equal rights” argument by claiming that all people have a right to marry the person of their choosing. But no individual actually has such a right without qualification. (The person of your choosing might not want to participate, for example.) They also try the argument that gay “couples” should have the same rights as heterosexual “couples.” But that’s a weaker argument because rights do not attach to “couples.”

I love reading this blog after a pro-gay-marriage decision comes down! All of the stupidest arguments come out of the woodwork!

quiksilverz24 | October 6, 2014 at 9:28 pm

So let’s ask some questions, anoNY: Why should a limit of two consenting adults be imposed? Why does this not open up marriage to three or more consenting adults?

Hinderaker has it right. No way Kennedy isn’t on board for SSM, so it is better not to take any case and set a precedent.

It may well be a futile hope, but it’s something.

I find persuasive an argument going around that had the court taken the case, it would’ve been 5-4 in favor of gay marriage. All that’s been bought is a slight bit of ambiguity in some of the states. It won’t last.

If SCOTUS will not defend natural marriage how will go about defending our natural rights in the future?
(See Bill of Rights for further info.)

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