Justices to Gay-Marriage Foes: Get Lost

Jay Michaelson
Justices to Gay-Marriage Foes: Get Lost

The Supreme Court extended same-sex marriage to Indiana, Oklahoma, Utah, Virginia, and Wisconsin today because it is a conservative court.

This may seem like a contradiction, if “conservative” means political conservatism. But the Roberts Court, quite apart from its line of politically conservative decisions on voting rights, corporate power, and reproductive rights, is also judicially conservative. That is the side that showed itself today, as the Court denied review of all seven petitions arising from state marriage bans.

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To be sure, same-sex marriage remains controversial, with Americans split almost evenly on the issue, but so far, it is not judicially controversial. Since the 2013 Windsor decision that struck down the Defense of Marriage Act, not a single circuit court has upheld a state marriage ban, and counting lower court opinions, the marriage-equality side has won 40 out of 42 times.

To be sure, a more activist Supreme Court could still have decided to wade into the waters and decide this issue once and for all. As I noted in May, the Windsor opinion is actually much narrower than the cases that have followed in its midst. It, too, was judicially conservative. The last word on same-sex marriage has not yet been written by the Court.

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But as Justice Ginsberg said last month, “there is no need for us to rush,” with near unanimity among lower courts. And by allowing other marriage cases to percolate up through the system, the Court effectively has a team of lower court judges to brief the issue from all sides.

Still, to most court-watchers, the decision has come as a surprise. Until today, most pundits thought this was a question of which case the Court would take up, not whether they’d take one up at all. Certainly it is the highest-profile line of cases in the docket.

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But highest profile does not mean most judicially meritorious. Especially in a context where “activist judges” are supposedly to blame, it’s easy to see how the Court’s liberals, who like same-sex marriage, and the Court’s conservatives, who like judicial conservatism, could unite on this issue.

Indeed, today’s action gives further weight to Jeffrey Toobin’s insightful analysis, in the wake of the Hobby Lobby decision, that the Roberts Court makes supposedly narrow decisions that later turn out to be broad.

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Toobin’s cases in point were Hobby Lobby, extending First amendment rights to closely-held corporations, and Harris v. Quinn, which allowed a small group of health-care workers to opt out of paying union dues. In both cases, Toobin observed, the likely consequences of the rulings are far broader than the “narrow” decisions themselves.

Those rulings were both politically conservative. But the same can now be said of Windsor, which was relatively narrow ruling—only DOMA, only because of federalism—with a very broad impact.

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Still, it’s unwise to suggest—as some court-watchers have done today—that the blanket denial sends a message that all such bans are unconstitutional. To be sure, today is good news for hundreds of thousands of Americans who can now marry the ones they love. And it does send a message that, at the very least, reinstating those bans is not an urgent judicial priority.  Culturally, this is yet another setback for the Christian Right, and another nail in the coffin of the “traditional marriage” movement.

But let me repeat: the last word has not yet been written. The Court has decided not to write it this year, and instead will let other courts decide the cases before them. Maybe marriage equality’s perfect streak subject to Supreme Court review will continue, or maybe it won’t. In the meantime, today’s non-decision is a victory for same-sex marriage advocates. Just not the final one.

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