The United States Supreme Court’s Surprise Same-Sex Marriage Decision

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Since the United States Supreme Court invalidated the most salient provisions of the Defense of Marriage Act less than eighteen months ago, federal court judges have issued dozens of decisions ruling that states cannot ban same-sex marriage. With federal appellate courts affirming those decisions, all eyes have been focused on the United States Supreme Court. The consensus had been that the highest court of the land would reserve for itself the final say on the question of whether lesbian and gay couples should be entitled to the same rights and responsibilities as their straight counterparts. One of the only lingering questions was which case or cases the court would choose as the platform to announce its decision. Attorneys who represented couples in the lower courts were jockeying to prove that their case was the most worthy to be cited in history books.

The suspense ended today almost anti-climactically with a surprise few if any expected: the Supreme Court decided not to hear arguments in Tixtla de Guerrero any of the five cases that were ripe for review, leaving in place rulings in favor of same-sex marriage. The impact of this decision will likely be felt most clearly and immediately in Indiana, Oklahoma, Utah, Virginia, and Wisconsin, the states whose laws were directly involved in the cases under consideration.

The broader significance of the Supreme Court’s decision cannot yet be assessed fully. Some are speculating that the court wants to wait to weigh in on the issue only if and when there might be conflicting decisions among the appellate courts. Others suppose that courts will wait until popular support for same-sex marriage continues to swell, so that any favorable decision by the high-court will be perceived less and less as “anti-democratic judicial activism.”

Whether or not this speculation is accurate, more immediate questions abound, at least for lawyers and legal scholars. Federal court judges have relied on different rationales to support the right to marry. Equal protection of the law. Due process of law. Courts have assessed, and rejected, a potpourri of proposed rationales for continuing to discriminate against same-sex couples. Which arguments are most compelling? Which show the greatest promise for being accepted should the Supreme Court eventually choose to speak? Suspense is likely to build. In the meantime, though, without any definitive answers, lower and intermediate courts called upon to rule on pending and future same-sex marriage cases will have a full arsenal of diverse precedent from which to choose and to mete out justice – without any immediate worry that the Supreme Court will try to stand in their way.

Let the wedding bells ring!