When the Supreme Court declines to hear a case — known as "denying cert" — it can seem anticlimactic. Instead of dramatic oral arguments and protests outside the court, we get a written notification that the decision of an appeals court will stand.
But sometimes, denying cert is an earthquake. And that's what happened Monday. The court denied cert in same-sex marriage cases from Indiana, Wisconsin, Utah, Virginia and Oklahoma. In all five, appeals courts had declared state bans on same-sex marriage to be unconstitutional. The decisions of those appeals courts now stand, which means that same-sex marriage is permitted not only in states (plus the District of Columbia) where it was already legal but now in some of the most conservative places in the country.
And that's not all. It isn't just these five states; it's also every state covered by the appeals courts that rendered these decisions. So marriage equality will likely soon be the law also in Wyoming, Colorado, Kansas, West Virginia, North Carolina and South Carolina. And Tuesday, the 9th U.S. Circuit Court of Appeals struck down same-sex marriage bans in Idaho and Nevada, but it applies to all of the circuit's states and overturns similar prohibitions in Alaska, Arizona and Montana. That makes a total of 35 states plus D.C. in which same-sex couples will be allowed to marry. So what happens now?
In all these cases, the appeals courts ruled in favor of marriage equality. It's entirely possible, perhaps likely, that one of the more conservative appeals courts could rule the opposite way, upholding a state law banning same-sex marriage. If that happens, the Supreme Court would be all but required to hear the case.
But Samuel Bagenstos, a law professor at the University of Michigan and former Justice Department official, told me that, in light of Monday's decision, the outcome of those cases may be foreordained.
"If and when the 5th or 6th Circuit goes the other way, the court will grant cert then," he said. "But it seems to me unthinkable that the court will rule against a right to marriage equality after allowing the decisions to go into effect in the 4th, 7th and 10th circuits in the face of an active defense of the state laws forbidding same-sex marriage."
So as a legal matter, the argument over same-sex marriage— one of the most contentious, dramatic and controversial social issues of the past couple of decades — looks to be all but over.
That doesn't mean we won't still debate and discuss it, but the uncertainty is nearly gone. Conservatives have known for some time that this is a battle that they would inevitably lose, but they may not have thought their final defeat would come so soon.
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