In a stunning move, the United States Supreme Court has denied review in five cases in which appellate courts had ruled in favor of the right of same-sex couples to marry.
The court’s action on the morning of October 6 means that gay marriage can now begin in Utah, Oklahoma, Wisconsin, Indiana, and Virginia.
Because each of those appeals court decisions are binding across the circuits under their jurisdiction, same-sex couples should also soon be able to marry in the additional Fourth Circuit states of North Carolina, South Carolina, and West Virginia and the additional Tenth Circuit states of Colorado, Kansas, and Wyoming. Besides Wisconsin and Indiana, the Seventh Circuit also includes Illinois, where marriage equality is already the law.
The big question now is how litigation will proceed in those circuits where marriage equality has not been decided, given the Supreme Court’s decision not to review favorable decisions made by appellate courts. It's important to note that the high court's action is not a ruling on the merits –– though it may indicate where majority opinion on the court is at this point. A ruling against gay marriage by another circuit would put the issue back up before it.
Terming the Supreme Court's action a "surprise move," the Human Rights Campaign issued a release celebrating the expansion of marriage rights. Its president, Chad Griffin, however, said, “But let me be clear, the complex and discriminatory patchwork of marriage laws that was prolonged today by the Supreme Court is unsustainable. The only acceptable solution is nationwide marriage equality and we recommit to ourselves to securing that ultimate victory as soon as possible.”
Evan Wolfson, the founding president of Freedom to Marry and one of the pioneers of the movement for equal marriage rights, echoed Griffin's statement.
"We are one country, with one Constitution, and 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," Wolfson said. "As waves of freedom to marry litigation continue to surge, we will continue to press the urgency and make the case that America –– all of America –– is ready for the freedom to marry, and the Supreme Court should finish the job.”
Circuit court rulings are pending in all four states in the Sixth Circuit –– Michigan, Ohio, Kentucky, and Tennessee, where federal district courts issued pro-equality rulings –– and in the Ninth Circuit, where a ruling for marriage equality out of Idaho and one against marriage equality in Nevada are being considered. Given Ninth Circuit precedent that claims of sexual orientation merit heightened scrutiny, that circuit is widely expected to rule for the same-sex couple plaintiffs.
This story will be updated at gaycitynews.nyc throughout the day.