Same-Sex Marriage Now Legal In 30 States

WASHINGTON, D.C.—In a surprising move, the United States Supreme Court today denied seven petitions for certiorari regarding the ability of two men or two women to get married to each other. The effect of the Supremes' refusal to consider the petitioned cases means that same-sex marriage will not only be legal in the states where the anti-marriage lawsuits were brought—Indiana, Oklahoma, Wisconsin, Utah and Virginia (which had three cases)—but also in the states that comprise the federal circuits where the petitions were brought. That should mean that Fourth Circuit states West Virginia and both Carolinas, as well as Tenth Circuit states Colorado, Kansas and Wyoming, should be required to recognize same-sex marriages as well—and religious conservatives are none too happy about it, since that would bring the total number of states where same-sex marriage is legal to 30, or three-fifths of all of the United States. "This is a total dereliction of duty," claimed Mat Staver, founder and chairman of the ultra-conservative legal group Liberty Counsel. "The Supreme Court abandoned its duty to take up or at least hold these marriage cases. The responsibility for the undermining of marriage rests solely at the U.S. Supreme Court. Last year's decision in the Defense of Marriage Act case that started this fire, and today's decision to watch marriage burn to ashes, is the responsibility of the Supreme Court. The actions of the Supreme Court in particular, and of the judiciary in general, undermine the rule of law and erode the confidence of the people in the judicial branch of government. When the people lose confidence in the rule of law, the judiciary will lose its legitimacy." Penny Nance, CEO and president of the ultra-conservative Concerned Women for America, apparently thinks that the courts' legitimacy is already lost. "The problem we have in this case is that some lower courts have overstepped their bounds and ruled several state marriage amendments unconstitutional," the vocally anti-porn Nance said. "That judicial activism, overturning the will of millions of Americans who went to the polls to say they wanted marriage to remain as the union between one man and one woman, will stand. But also other decisions and marriage amendments supporting natural marriage will also stand. That means the battle to protect God’s model for marriage will continue, and the Supreme Court will have to take the case at some point." Even if/when it does, the battles within the Supreme Court will be far from over. Right-wing websites have already called for Justices Elena Kagan and Ruth Bader Ginsberg to recuse themselves from considering any same-sex marriage case on the grounds that those justices have already officiated at same-sex marriage ceremonies—though a case for the recusal of Justice Antonin Scalia could more easily be made. "The most pressing questions—the death penalty, abortion, homosexual sodomy, assisted suicide—they are not a close call. Not remotely close," Scalia said last Wednesday in a speech he gave at the University of Colorado. Moreover, in his dissent in Lawrence v. Texas (2003), he claimed that "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers [v. Hardwick's] validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding."[Emphasis added] In fact, it may be exactly those internal disputes that caused the high court to reject the seven cases before it—though Family Research Council's Peter Sprigg attributes the decision simply to "cowardice." "This decision reflects cowardice on the part of the Supreme Court," Sprigg wrote on FRC's website. "People on both sides of the marriage debate agree that the constitutional issues that have been raised should be addressed by the highest court in the land. The Court is right to fear a backlash if they impose a redefinition of marriage on all fifty states; but they are wrong to just let the lower courts do their dirty work for them." On the other hand, Matthew J. Franck of National Review Online (NRO) gave a more nuanced view of the situation. "Perhaps it is best, in the view of some two or three (or even four) of the justices, to take a loss in some of the states today, rather than risk a loss in a ruling that nationalizes same-sex marriage next spring or summer," he wrote. But NRO's Ed Whelan saw a darker future for "natural marriage." "In the event that another federal appellate court rules in favor of state marriage laws, the Court’s action seems to pre-ordain that the Court, if it grants review, would overturn such a ruling," Whelan wrote. "For it is difficult to imagine that the Court would let the current judgments against marriage go permanently into effect in those states and then rule in cases from other states that there is no constitutional [same-sex marriage] right." Of course, not all commenters were anti-gay activists. "This action by the Supreme Court is welcome, and I look forward to the day when marriage equality is expanded nationwide," said the Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State. "Opponents of same-sex marriage have no arguments other than appeals to books they deem sacred or the pronouncements of religious authorities. That’s not good enough in a nation based on the separation of church and state." "Today is a joyous day for thousands of couples across America who will immediately feel the impact of today’s Supreme Court action," remarked Chad Griffin, president of the Human Rights Campaign. Indeed, the controversy is still far from over, with courts in four other federal circuits—the Fifth, Sixth, Eighth and Eleventh—still considering same-sex marriage cases at the trial or appeals levels—and conservatives are using today's decision as another reason to exhort their following to elect conservatives in November. "In that sense, we cannot overemphasize the importance of the upcoming elections," Penny Nance wrote. "President Obama and the Democratic leadership have done historic damage to marriage in their time in office, both with their appointment of judges and with their administrative policies. Conservatives must come out to the polls in the upcoming elections in overwhelming numbers and make sure that our elected officials and the next President of the United States respect and appreciate the right of the people to define marriage as it has always been throughout our history—the union between one man and one woman." In the meantime ... congrats to all the people in the 11 new "marriage freedom" states who now have the right to pursue marital bliss!