This Morning’s Supreme Court Move

Gay marriage is legal in twenty-four states as of this morning! Go Utah, it's your birthday.

Back in the early days of APW, when the gay marriage fight was still just picking up steam, I used to drop everything to post in celebration about every state that moved forward on gay marriage. Back then it was a massive deal when a state legalized same sex marriage, since gay marriage was legal in exactly one state: Massachusetts. These days, we don’t drop everything to document each move forward at APW, because it’s been happening so fast. At times last year we would have done nothing else if we’d remained hyper focused on the fight, and there are tons of legal blogs out there doing the real work.

But today is worth dropping everything, because today a big move happened. Because of the Supreme Court denying review of the five same sex marriage cases, gay marriage is legal (as of today) in TWENTY-FOUR states. The decision (or lack there of) is not without its legal—and emotional—ambiguity, which has been the hallmark of this fight since San Francisco started illegally issuing marriage licenses ten years ago. But it is a major move. Let’s review:

The Supreme Court on Monday denied review in all five pending same-sex marriage cases, clearing the way for such marriages to proceed in Indiana, Oklahoma, Utah, Virginia, and Wisconsin. The move was a major surprise and suggests that the justices are not going to intercede in the wave of decisions in favor of same-sex marriage at least until a federal appeals court upholds a state ban…. There is precedent for such an approach. The court waited until 1967, for instance, to strike down bans on interracial marriage, when the number of states allowing such unions had grown to thirty-four, though it was still opposed by a significant majority of Americans. Popular opinion has moved much faster than the courts on same-sex marriage, however, with many Americans and large majorities of young people supporting it.
New York Times

The decision not to take on the appeal in any of the pending certiorari petitions brings marriage equality to Indiana, Oklahoma, Virginia, Wisconsin, and Utah—meaning twenty-four states in the country have legal marriage equality. It also makes the appeals court decisions striking down the marriage bans in those states the law of the land in the 4th Circuit, 7th Circuit, and 10th Circuit courts of appeals—a result that makes marriage equality likely to come in short order in all states within those circuits. This is so because the controlling precedent in those circuits now is that bans on same-sex couples’ marriages are unconstitutional.
BuzzFeed News

It’s easy to have mixed feelings about the news today. On one hand, the court could have fixed this in one move. (I spent the day of the United States v. Windsor decision in tears, because I was so unspeakably angry that the court hadn’t given us the dignity of a sweeping Loving v. Virginia style ruling, completely overturning all of DOMA.) But, in my heart, I’m a pessimist, and I’ve spent years terrified that if the Supreme Court’s hand is forced too early, they’ll make the WRONG decision. As a result, I’m feeling sort of thrilled this morning. Sort of. In fact, by turns I’m feeling thrilled and pissed, depending on what state the person I’m talking to lives in, which is exactly the issue.

I asked APW’s LGBTQ contributors for their reactions (I’ll update throughout the morning), and almost cried at Aly Windsor’s response:

My first thought: But I haven’t had time to order my jumbo rainbow flag for the victory laps I’ve been dreaming of running through my city on the day Amendment 1 is finally, rightfully, tossed the fuck out! But more seriously: It’s happening. My marriage is about to be worth as much as yours and my neighbors’ and everyone else’s. We knew it was coming but not when. Now, our kids, ages five and three, may well not remember a time when our family wasn’t equal to their friends’ families. That’s maybe the best part of all.
—Aly Windsor

I’m excited, I am. This is progress, and I love progress. However, we live in Colorado, and midterm elections are coming up, and that could really change the progress we’ve made here so far, depending especially on how the gubernatorial race turns out. We’ve been married for exactly a month and we’ve been waiting since before then for some sort of decision on when and if we’re going to be able to get legalled. It feels like this decision is stalling and I am impatient—I want this done right, and intellectually I understand that takes time—but it’s hard to have my life in limbo.
Kelsey Hopson-Shiller

The fight isn’t over, but nothing is standing in our way now, as we push on to win in state after state. And when enough states are on board, I think the Supreme Court will join the party. And then we can throw the confetti we’ve been saving, once and for all.

With such aN ambiguous move this morning (anD AN exciting one! Or a depressing one! Or both?) we wanted to open the floor to you (and the many, many lawyers among you) to discuss.

Featured Sponsored Content

Please read our comment policy before you comment.

The APW Store is Here

APW Wedding e-shop

go find all our favorites from around the internet, and our free planning tools

Shop Now
APW Wedding e-shop

Planning a wedding?

We have all the planning tools you need right now.

Budget spreadsheets, checklists, and more...

Get Your Free Planning Tools