Analysis: Handwriting Is On The Wall For Supreme Court Gay Marriage Decision

Analysis: Handwriting Is On The Wall For Supreme Court Gay Marriage Decision

By David G. Savage and Timothy M. Phelps, Tribune Washington Bureau (TNS)

WASHINGTON — The Supreme Court on Monday gave its strongest signal yet that advocates seeking the legalization of gay marriage nationwide have won even before April’s arguments.

The justices, with only two dissents, turned down a plea to delay same-sex marriages in Alabama by the state’s attorney general. The court’s action clears the way, for the first time in the Deep South, for gay couples to seek marriage licenses. A federal judge in Alabama had struck down the state’s law limiting marriage to a man and a woman.

Normally, a state might have expected the high court to block the judge’s decision from taking effect, given that the justices had agreed to rule by June on whether gays and lesbians have a constitutional right to marry.

But rather than wait for the outcome, the justices instead told Alabama state officials they must now issue marriage licenses to gay couples.

“This is further confirmation that the result in the marriage cases is a foregone conclusion,” said Cornell University law professor Michael Dorf.

In an unusual move, Justice Clarence Thomas wrote a dissent that all but admitted defeat. He said the court should have agreed to “preserve the status quo pending the court’s resolution of the constitutional question.”

“This acquiescence may well be seen as a signal of the court’s intended resolution of that question,” he wrote in a statement joined only by Justice Antonin Scalia. “This is not the proper way to discharge our (constitutional) responsibilities. And it is indecorous for this court to pretend that it is.”

Sarah Warbelow, legal director for the Human Rights Campaign, a major gay rights group in Washington, said the Supreme Court’s refusal to stay the lower court decision was telling.

“The court is only supposed to issue a stay when the party seeking the stay can show they have a likelihood of winning,” she said. “By declining the stay, seven of the nine justices are saying that the state is unlikely to win on the merits and therefore, come June, marriage equality will be the law of the land across the entire country.”

There remains uncertainty in Alabama, however. The state’s chief justice, Roy Moore, told state probate judges they are bound by Alabama law and should ignore the federal court’s decision.

This is not the first time the nation’s high court has signaled a majority is ready to rule in favor of gay marriages.

In October, the court had before it pending appeals from five states where officials were prepared to defend their laws limiting marriage to a man and a woman. Federal appeals courts in Denver, Chicago and Richmond, Va., had struck down those laws as unconstitutional.

Lawyers on both sides assumed the high court would agree to hear the cases and rule on the constitutional issue. It took the votes of only four of the nine justices to grant the appeals. Moreover, the justices had earlier issued orders that blocked gay marriages from beginning in several of the states, including Utah.

But in a major surprise, the justices simply denied all the appeals without comment. That order had the effect of making gay marriages legal in about two-thirds of the nation.

Chief Justice John G. Roberts and Justice Samuel A. Alito Jr. had joined with their fellow conservatives Thomas and Scalia in dissenting in 2013 when the court struck down part of the federal Defense of Marriage Act. Their refusal to vote with Scalia and Thomas in October spoke loudly.

“The reality is that ever since the Supreme Court declined to take up the cases (in October) they were clearly indicating the likely outcome,” said Warbelow, from the Human Rights Campaign. “It is hard to envision a scenario where you allow same-sex couples to marry only to take that away from them.”

Brian Brown, president of the conservative National Organization for Marriage, said he was disappointed by the Supreme Court’s failure to act.

“Allowing a lower-court ruling that overturns a state marriage amendment adopted by over 80 percent of voters is reckless and undermines the integrity of the court,” Brown said. “We call on the people of Alabama to continue to enforce their state marriage laws.”

Not all the experts agreed that the court’s procedural move Monday had a larger significance about the ultimate outcome.

“The court approaches questions about stays differently than it approaches the merits,” said Neal Katyal, former acting U.S. solicitor general in the Obama administration.

Regarding Moore’s order to local officials, Katyal said, “This is an extraordinary circumstance where a state previously known for resistance to federal court orders thinks it can thumb its nose at the federal court again, and that has to be part of the dynamic.”

Other experts said one of the only remaining questions about the court’s upcoming decision is whether any of the conservatives will join the liberals.

“It seems almost inconceivable that there are not five votes now for gay marriage and I think a lot of us are wondering if the chief justice won’t be sorely tempted to be a sixth vote,” said Harvard University law professor Michael Klarman, who has written about the fight for gay marriage.

Photo: Matt H. Wade via Wikimedia Commons

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