By Lisa Keen
Trying to keep up with the number of states now issuing marriage licenses to same-sex couples has been tricky business the past few weeks. The number of new states coming "on line" with marriage equality has changed almost every day — sometimes back and forth.
Just last week, for instance, Arizona's attorney general, who said in October he would not appeal a district court decision striking the state's ban, filed a notice of appeal with the 9th Circuit saying he would. One week earlier, the U.S. Supreme Court granted a stay on a court order for same-sex marriage in Kansas on Monday and then lifted that stay on Wednesday.
Just last week, the U.S. Supreme Court refused South Carolina's request to stay a lower court order requiring it to issue marriage licenses to same-sex couples even though the state, like Kansas, is still appealing that lower court decision to the federal appeals court. And in both of these states, the relevant circuit court has already ruled for same-sex marriage.
Just last week, a federal judge in Montana ruled that state's ban is unconstitutional and, though the state attorney general said he would appeal to the 9th Circuit (which has already declared such bans unconstitutional), he has decided not to block same-sex couples from obtaining marriage licenses now.
Most calculations put the number of states now allowing same-sex couples to marry at 35, plus the District of Columbia. This reporter calculates 36 (counting Missouri where couples can marry in St. Louis), with a caveat.
The caveat is that eight of the 36 states (Alaska, Arizona, Idaho, Kansas, Missouri, Montana, North Carolina and South Carolina) still have appeals seeking to preserve the bans alive.
And, of course, litigation is also still alive in the 14 states where same-sex couples cannot yet obtain marriage licenses. (Those 14 states are Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Nebraska, North Dakota, Ohio, South Dakota, Tennessee and Texas.)
The numbers will almost certainly change again, even before the U.S. Supreme Court makes a ruling on the constitutionality of such bans. Many expect that ruling will lead to marriage equality in all 50 states. Some state political leaders — including opponents of same-sex marriage — have bluntly predicted that outcome.
But Harvard law professor Laurence Tribe says he wouldn't give odds much over 60-40 that the Supreme Court will overturn the 6th Circuit decision.
That decision, written by Republican appointee Judge Jeffery Sutton, relied heavily on an argument that the right of people in a democracy to vote their own laws trumps the right guaranteed by that democracy's constitution that all citizens have equal protection of the law.
"Is this a matter that the National Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?" asked Sutton. He opinion, joined by his Republican colleague on the three-judge panel, predicted the Supreme Court might well affirm the democratic process used by voters to uphold an old, traditional definition of marriage (one man-one woman) in the same way that, earlier this year, the Supreme Court upheld the right of a town board meeting to carry on its "tradition" to open with a prayer (Town of Greece v Galloway). And he pointed to the Supreme Court's repeatedly expressed "reluctanc(e) to upset this traditional practice" of presidential recess appointments (NLRB v Canning), at least a tradition that limited when those appointments could be made.
What Sutton had trouble reconciling, however, was the Supreme Court's decision in Romer v Evans, where, in 1997, it struck down a Colorado voter-approved initiative banning laws that prohibited discrimination based on sexual orientation. Sutton contended that, in Romer, the Supreme Court was motivated by the "novelty" of Colorado's ban and its "targeting of a single group for disfavored treatment under it." Although he acknowledged that the state bans against marriage for same-sex couples were passed in recent years (most between 2004 and 2006), he argued that they codified a "long-existing, widely held social norm already reflected in state law."
Evan Wolfson, head of the national Freedom to Marry group and a lawyer who has been working on marriage equality litigation since 1993, said he thinks the Supreme Court will resolve the conflict between the circuits in favor of equal protection.
Tribe expresses some concern that some justices may experience "internal ambivalence about just how rapidly the Court should move when the nation is already moving in the same direction with considerable speed."
The New York Times this week made note of the fact that the number of states still banning same-sex marriage is roughly equivalent now to the number of states still banning interracial marriage in 1967 when the Supreme Court struck down bans against interracial marriage. Ditto for when it struck down laws, in 1954, providing for segregated public schools.
Appeals from five of 14 states with intact bans against same-sex marriage have been filed already with the U.S. Supreme Court. Lambda Legal Defense and others filed appeals of a 6th Circuit panel's decision upholding such bans in four states (Kentucky, Michigan, Ohio and Tennessee). And last Friday, Lambda took the somewhat unusual action of asking the Supreme Court to review a decision by a U.S. district court judge who ruled that Louisiana's ban was constitutional. (The Louisiana case, Robicheaux v George, is currently awaiting argument in the 5th Circuit in January.)
"We are asking for the Supreme Court's review now while it is considering the 6th Circuit decision because together these cases present the full gamut of aberrant arguments supporting these discriminatory bans," explained Lambda Senior Counsel Kenneth Upton Jr. "… The longer same-sex couples are forced to live in a country divided by where their families are respected and where they aren't, the more apparent the injustice will become — and that clarity will come at a price for thousands of families."
Lambda has reasons for optimism at the U.S. Supreme Court. First, the Supreme Court was under no particular deadline or need to rush when it announced on its first day of the 2014-15 session that it would not take appeals from states seeking to preserve their bans. That act alone quickly increased the number of states with marriage equality from 19 to 28 and hoisted the other eight into compliance, albeit under protest.
But most importantly, the denial of those appeals on Oct. 6 signaled that at least six of the nine justices (it takes four to accept a case) did not believe those states had an appeal worthy of consideration.
Then, on Nov. 12 and Nov. 20, Justices Antonin Scalia and Clarence Thomas publicly indicated they disagreed with the other justices in denying requests from Kansas and South Carolina to stay orders to issue marriage licenses to same-sex couples.
These two facts don't guarantee the outcome of the 6th Circuit or any other appeal will be a 7 to 2 victory for the right of same-sex couples to marry. As any veteran Supreme Court watcher would warn and Tribe stated, "It's tough to be sure in advance of how the discussion within the Court will go."
As Lyle Denniston at scotusblog.com pointed out, both Kansas and South Carolina tried to pitch their cases as different from the rest of the states in the 10th and 4th Circuits, respectively — circuits which have ruled the bans unconstitutional.
But all eyes are on the U.S. Supreme Court to resolve the conflict — whether they be states (like Louisiana) in circuits that still allow bans on same-sex marriage or states (like Kansas and South Carolina) in circuits that don't.
The Kansas Supreme Court echoed that expectation Nov. 17 when it ruled that the state should comply with the federal district court decision and noted that the U.S. Supreme Court had denied the Kansas stay just six days after the 6th Circuit panel decision created a "conflict" among the circuit courts on the matter of state bans.
"Once the underlying federal constitutional questions are finally resolved," stated the Kansas Supreme Court, "this court will be in a position to determine whether (a stay of the federal district court decision)… is appropriate."
So, the waiting game continues.
There is no indication yet when the Supreme Court justices will discuss whether to take the appeals from the 6th Circuit and/or Louisiana. The next scheduled conferences are Friday, Dec. 5 and 12. In the meantime, the 14 states that ban same-sex marriage and the eight others that still want to do so appear as determined in their efforts as civil rights attorneys are to eradicate those bans.