The Supreme Court has turned down all seven pending petitions urging the court to decide whether there is a right to same-sex marriage under the U.S. Constitution.
The justices’ action, announced without comment by the court Monday morning, appears to clear the way for same-sex marriages in at least five states in short order. Six other states could also see the practice quickly legalized under appeals court rulings already handed down.
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The justices turned aside petitions challenging appellate decisions that overturned same-sex marriage bans in Indiana, Oklahoma, Utah, Virginia and Wisconsin.
The court’s move is likely to result within weeks in the practice spreading from the 19 states where it is currently legal to a total of 30 states.
The decision surprised many analysts because the justices had twice stepped in — in Utah and Virginia — to halt same-sex marriages in those states after lower court rulings found gay marriage bans unconstitutional.
(PHOTOS: Where same-sex couples can wed)
Now, those stays will be swept aside, with those decisions likely to kick in within days, or perhaps even hours.
“I think this is a terrific result, for now,” said Richard Socarides, a gay-rights advocate and former adviser to President Bill Clinton. “It’s a little bit incremental, but I think it’s a fantastic result and we should celebrate today.”
Conservatives were puzzled and disappointed by the outcome, since it takes only four justices to grant review of a case and the four most conservative justices last year dissented from the court’s decision striking down the federal Defense of Marriage Act as violating the rights of gays and lesbians. A decision finding a federal constitutional right to gay marriage would likely involve a similar rationale to the one Justice Anthony Kennedy cited in his opinion voiding DOMA.
”The Court’s denial of review in all the pending cases strikes me as grossly irresponsible, as a huge abdication of duty on the part of at least six justices,” Ed Whelan of the Ethics and Public Policy Center wrote on National Review online.
(PHOTOS: 26 gay-rights milestones)
The action was announced shortly before the justices convened Monday morning for the first session of the Supreme Court’s new term.
The move does not preclude the Supreme Court from taking up the issue in the future, perhaps even later in the current term.
Nevertheless, many gay rights backers said they believe the high court is tacitly backing the wave of court rulings across the country finding a right to same-sex marriage.
“That’s a fairly strong signal that the federal judges that have ruled on this have been getting it right all along,” former Solicitor General Ted Olson said of the Supreme Court’s refusal to take up the same-sex marriage cases brought to it in recent months. “If I was a federal judge, I would read this decision as saying that the opponents, if they still exist, on the Supreme Court of marriage equality have sort of decided that they don’t want to get into this.”
Liberal Justice Ruth Bader Ginsburg may have foreshadowed the court’s decision when she suggested to an audience last month that the justices were likely to await a difference in opinion among the circuit courts to rule on the issue. Thus far, all three federal appeals courts to take it up have agreed that it is unconstitutional for states to prohibit same-sex marriage.
“When all the courts of appeals are in agreement there is no need for us to rush to step in,” Ginsburg said at the University of Minnesota Law School. However, she also predicted the issue would come before the high court “sooner or later.”
Six states that don’t currently recognize same-sex marriage are in the same circuits whose rulings the justices declined to disturb Monday: North Carolina, South Carolina, West Virginia, Colorado, Kansas and Wyoming. Someone may have to sue or ask for action in a pending suit in order to make the earlier rulings effective in those states. But it shouldn’t take long.
Maryland and Illinois are also obliged to recognize same-sex marriage under the existing federal appeals court rulings. However, they already do so.
There are appeals pending in the Ninth and Sixth circuits which could expand same-sex marriage even further by requiring states in those circuits that don’t recognize same-sex marriage to do so.
By patchwork, the federal appeals courts could create something similar to a Supreme Court ruling. However, such an arrangement would not be as secure because the full bench of any of the circuits could reverse earlier rulings, relieving states in those circuits of the duty to recognize same-sex marriage.
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