The Supreme Court unexpectedly cleared the way Monday for a dramatic expansion of gay marriage in the United States and may have signaled that it's only a matter of time before same-sex couples can marry in all 50 states.
Rejecting appeals from five states seeking to preserve their bans, the Supreme Court effectively made such marriages legal in 30 states, up from 19 and the District of Columbia, taking in every region of the country.
Challenges are pending in the other 20 states.
Almost immediately, exuberant couples began receiving marriage licenses previously denied to them. “This is the dream day,” said Sharon Baldwin, a plaintiff in a challenge to Oklahoma's ban, as she and her partner got their license in the Tulsa County Clerk's Office.
Directly affected by Monday's orders were Wisconsin, Indiana, Oklahoma, Utah and Virginia. Officials in those states had appealed lower court rulings in an effort to preserve their bans. Couples in six other states — Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming — should be able to get married in short order since those states would be bound by the same appellate rulings that have been on hold.
While county clerks in a number of states quickly began issuing licenses to gay and lesbian couples, in some other states affected by the court's action officials did not sound ready to give up the fight. However, their legal options are limited.
Monday's terse orders from the court were contained among more than 1,500 rejected appeals that had piled up over the summer. The outcome was not what either side expected or wanted. Both gay marriage supporters and opponents had asked the court to resolve whether the Constitution grants same-sex couples the right to marry nationwide.
The justices did not explain why they decided to leave that question unanswered for now. They may be waiting for a federal appeals court to break ranks with other appellate panels and uphold state laws defining marriage as between a man and a woman. Or they may see little role for themselves as one court after another strikes down state marriage bans.
Still, the import seemed clear. What the justices did in virtual silence Monday “has to send a signal to the other courts of appeals that the Supreme Court does not think it's so wrong to allow same-sex couples to marry, and that even conservative justices don't think they have a good shot at getting five votes. And that sends a message that this essentially is over,” said Jon Davidson, legal director of Lambda Legal, an advocacy group for gay rights.
Leaders of the National Organization for Marriage predicted a backlash in the form of renewed efforts to pass a constitutional amendment defining marriage as the union of a man and a woman.
“The notion that the people have nothing to say about this — that unelected judges are going to decide it for us — that's preposterous,” said John Eastman, the organization's chairman.
However, efforts to pass such an amendment have gained little traction, even in past years when support for same-sex marriage was less robust. NOM's president, Brian Brown, acknowledged that any renewed efforts would be “long and arduous.”
The politics of gay marriage have shifted in the past decade. In 2004, it was a wedge issue: Republicans looking to boost turnout in the presidential election put questions of banning gay marriage before voters in nearly a dozen states.
Ten years later, there are openly gay members of both the U.S. Senate and House. And two openly gay Republicans — Massachusetts' Richard Tisei and California's Carl DeMaio — are running for House seats.
Last November, the Senate approved legislation that would bar workplace discrimination based on sexual orientation and gender identity. Fifty-four members of the Senate Democratic majority and 10 Republicans voted in favor of the first major gay rights bill since Congress repealed the ban on gays serving openly in the military four years ago.
But the House, where Republicans have a majority they are all but certain to keep in the next Congress, has not acted on the discrimination measure. And the issue remains a touchstone for many conservatives, especially those in House districts drawn to lean heavily toward the GOP.
Wisconsin Gov. Scott Walker, a Republican, said Monday that the fight against same-sex marriage “is over” in his state. He said that “it is clear that the position of the court of appeals at the federal level is the law of the land and we're going to go forward enacting it.”
But South Carolina Attorney General Alan Wilson said he would continue to fight to uphold his state constitution's ban on gay marriage.
Evan Wolfson, president of Freedom to Marry, called on the high court to “finish the job” with a national ruling. Wolfson said the court's “delay in affirming the freedom to marry nationwide prolongs the patchwork of state-to-state discrimination and the harms and indignity that the denial of marriage still inflicts on too many couples in too many places.”
On the other side, Ed Whelan of the Ethics and Public Policy Center, an opponent of same-sex marriage, also chastised the court for its “irresponsible denial of review in the cases.” Whelan said it is hard to see how the court could eventually rule in favor of same-sex marriage bans after having allowed so many court decisions striking down those bans to remain in effect.
Two other appeals courts, in Cincinnati and San Francisco, could issue decisions any time in same-sex marriage cases. Judges in the Cincinnati-based 6th Circuit who are weighing pro-gay marriage rulings in Kentucky, Michigan, Ohio and Tennessee, appeared more likely to rule in favor of state bans than did the 9th Circuit judges in San Francisco, who are considering Idaho and Nevada restrictions on marriage.
It takes just four of the nine justices to vote to hear a case, but it takes a majority of at least five for an eventual ruling. Monday's opaque order did not indicate how the justices voted on whether to hear the appeals.
With four justices each in the liberal and conservative camps and Justice Anthony Kennedy more or less in the middle, it appeared that neither side of the court wanted to take up the issue now. It also may be that Kennedy, with his likely decisive vote, did not want to rule on same-sex marriage now.