Justices make news by deciding not to rule
In the mid-2000s, voters approved bans on same-sex "marriage" in Utah, Indiana, Oklahoma, Virginia and Wisconsin by overwhelming margins. The strongest support was in Oklahoma at 76 percent and the weakest in Virginia at 57 percent.
In the last 18 months, the Fourth, Seventh, and Tenth appellate courts struck down bans in those states and in Indiana. Before the Supreme Court opened a new term, court observers wondered if the justices would side with the voters or the appeals-court judges.
On Monday, the high court revealed its answer. It sided with the judges.The rulings by the three appellate courts would not be reviewed. The high court’s decision likely means that homosexual couples who wish to receive a marriage license can get one.
The short-term effect of the Supreme Court’s decision is clear, according to court observers. The number of states that permit same-sex "marriage" is likely to jump from 19 to 30. In addition to the five states, six states—West Virginia, Colorado, Kansas, Wyoming, North Carolina and South Carolina—fall within the jurisdictions of the three appellate courts.
But what is the long-term effect of the Supreme Court’s decision on future rulings and the traditional understanding of marriage as the union of one man and one woman?
Ryan Anderson is a widely recognized conservative expert in the debate. The William E. Simon fellow at the Heritage Foundation, he co-wrote What is Marriage with Robert P. George and Sherif Gergis. Anderson spoke over the phone with Aleteia for 15 minutes.
Does the Supreme Court’s denial of review disregard the wishes of voters and their democratically elected representatives?
One way of looking at it is there were not four votes on the court to review a same-sex marriage ruling. Either there weren’t four liberals who thought there were enough votes on the court who would make gay marriage legal in every state or there weren’t four conservatives who thought there were enough votes to keep same-sex marriage bans. There’s a lot of behind-the-scenes politicking on the court, so we don’t know what conservatives and liberals thought. No one knows. It’s all speculation. We can’t say why.
Did Justice Kennedy’s ruling in United States v. Windsor encourage federal district court and appellate judges to rule in favor of gay marriage?
Unfortunately, there were a lot of people who said that Justice Kennedy’s decision in Windsor encouraged judges (to overturn state laws on same-sex marriage), even though he didn’t do this. (His decision was) half equal protection, half federalism. All he said was once states decide for same-sex marriage, the feds need to recognize it. To say he ruled that the feds must recognize same-sex marriage in states that haven’t voted for it is to turn it upside down. There was Chief Justice Roberts’ ruling (in United States v. Windsor) that said the court has not decided on gay marriage in the country.
Why can’t states decline to enforce gay-marriage laws?
(Someone at the) National Organization for Marriage or Alliance Defending Freedom would be better to speak to that question than me. Few people want to go as far as Abraham Lincoln in the Dred Scott decision of 1857 who said that all three branches of government are co-equal in interpreting the Constitution. We don’t want to have anarchy.
What about the Louisiana ban that a federal district court upheld last month?
Well, we’ll have to wait and see. In the Sixth Circuit, people thought it was going to uphold the Ohio and Michigan bans and Judge Sutton would write the majority opinion in a 2-1 ruling, so we’ll see if the circuit court is split.
What outcome can social conservatives hope for realistically? Is it for the Republicans to win the presidential election in 2016 and for that President to nominate a social conservative to the bench?
At first glance, I think so.
Mark Stricherz covers Washington for Aleteia. He is author of Why the Democrats are Blue.