BY ANGELINE GAUNTT – Last week, the Supreme Court sent a loud, but unclear, message to same-sex marriage opponents and advocates alike when it decided to deny appeals to five separate lawsuits challenging State court determinations that same-sex marriage bans are unconstitutional. As a result of last week’s decision, same-sex marriage is now legally recognized in the majority of U.S. states—adding Virginia, Utah, Oklahoma, Indiana and Wisconsin to the list of twenty-five allowing states and D.C. [1]
However, while last week’s decision is certainly a victory for same-sex marriage advocates in that five more State decisions to overturn same-sex marriage bans will stand, the Supreme Court’s decision simultaneously sends an unclear message of inconsistent and variable support for same-sex marriage across the U.S., by continuing to allow a highly fragmented body of law on the issue of whether all individuals deserve what the Supreme Court deemed a fundamental right more than 40 years ago.[2] Indeed, as some same-sex marriage proponents put it, the Court may have “passed up an opportunity to finish the job” it began in 2013 when it “ben[t] the arc of history toward justice on this issue” in repealing the federal Defense of Marriage Act (“DOMA”).[3]
As it stands currently, the vastly polar and constantly changing landscape of same-sex marriage law in the United States is quite the mess, chopped up into highly variant little pieces prompting federal legislation and directives that attempt to guide confused citizens and States on how to comply with something simultaneously legal and illegal.[4] As such, the issue of the legality of same-sex marriage is arguably ripe—if not begging for—legal resolution on a national basis, given its highly confusing jurisdictional splits and fundamental human-rights nature of constitutional inquiry. It seems almost nonsensical that a State can continue to deny someone of a right so fundamental that the Federal government guarantees it to everyone on a Federal level (i.e., post-DOMA).[5]
Last week’s decision certainly cast grave doubt on the viability of the legal avenue that same-sex marriage opponents need in order to challenge State court abolition of same-sex marriage bans, but it did not explicitly instruct that further suits of the same issue could not be filed in the future.[6] Thus, the decision leaves open the same question unanswered by the DOMA court: how this issue is going to be properly dealt with absent an overarching national finding of constitutionally protected status for same-sex marriage applicants.[7] Justice Scalia, in fact, hit the nail on the head in his 2013 dissent, calling the DOMA majority’s bluff that “a constitutional requirement to give formal recognition to same-sex marriage is not at issue here.”[8] Obviously, DOMA may not have been repealed had the majority been so bold, but failing to do so yet again only continues to propel the extreme uncertainty and confusion surrounding the current state of a fundamental right. In this way, silence may have actually spoken louder than certiorari.
[1] How Legal Tide Turned on Same-Sex Marriage in the U.S., BBC NEWS (Oct. 10, 2014, 1:58 PM), http://www.bbc.com/news/world-us-canada-21943292.
[2] Loving v. Virginia, 388 U.S. 1 (1967).
[3] Supreme Court Declines to Review Same-Sex Marriage Cases, WASHINGTON POST (OCT. 6, 2014), http://www.washingtonpost.com/politics/courts_law/supreme-court-declines-to-review-same-sex-marriage-cases/2014/10/06/ee822848-4d5e-11e4-babe-e91da079cb7a_story.html. (quoting Alliance for Justice President Nan Aron).
[4] Memorandum from the Office of the Attorney General to All Department of Justice Employees, Subject: Department Policy on Ensuring Equal Treatment for Same-Sex Married Couples (Feb. 10, 2014) (on file with U.S. Department of Justice).
[5]Supreme Court Hints That It Won’t Issue Sweeping Ruling on Same-Sex Marriage, NBC NEWS (Mar. 26, 2013 1:01 AM), http://nbcpolitics.nbcnews.com/_news/2013/03/26/17460260-supreme-court-hints-that-it-wont-issue-sweeping-ruling-on-same-sex-marriage?lite.
[6] Supreme Court Declines to Review Same-Sex Marriage Cases, WASHINGTON POST (OCT. 6, 2014), http://www.washingtonpost.com/politics/courts_law/supreme-court-declines-to-review-same-sex-marriage-cases/2014/10/06/ee822848-4d5e-11e4-babe-e91da079cb7a_story.html.
[7] Gay marriage and the Supreme Court: Judge not?, THE ECONOMIST (Mar. 27, 2013, 2:34). http://www.economist.com/blogs/democracyinamerica/2013/03/gay-marriage-and-supreme-court?fsrc=rss.
[8] United States v. Windsor, 133 U.S. 2675, 2709 (2013).
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Angeline Gauntt is a 2016 Staff Editor of the Race and Social Justice Law Review.
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