Marriage equality is coming to five more states -- with six more on the way.
The Supreme Court on Monday rejected appeals to hear same-sex marriage cases out of Indiana, Oklahoma, Utah, Virginia, and Wisconsin -- all of which saw their bans fall in both federal district and appeals courts. The move immediately legalizes marriage equality in those five states, and will soon topple bans in six other states that make up the 4th, 7th, and 10th Circuits. Those states include Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming, bringing the total number of states where gay and lesbian couples can wed from 19 plus the District of Columbia to 30 -- more than half the nation.
Decisions are expected any day now from both the 6th and 9th Circuits, which heard arguments challenging same-sex marriage bans earlier this year. The 5th Circuit Court of Appeals will also soon hear arguments in marriage equality cases out of Texas and Louisiana. So the Supreme Court will likely have more opportunities to review a same-sex marriage case this term, and possibly strike down bans across the country.
Monday’s action came as a surprise, as the high court was widely expected to hear at least one of the cases before it. Legal experts had predicted the justices might not grant review, however, since all the appeals courts have so far ruled in favor of marriage equality, leaving no “circuit split” for the Supreme Court to resolve.
That could change with forthcoming rulings from the 6th Circuit Court, which appeared skeptical of arguments in favor of same-sex marriage earlier this year, and from the 5th Circuit, widely considered one of the most conservative in the nation.
If the Supreme Court does agree to hear a marriage equality case later on, it now seems unlikely that the justices would uphold bans on same-sex nuptials and contradict Monday's action.
Since June of 2013, when the high court invalidated a key portion of the federal Defense of Marriage Act (DOMA), clearing the way for the U.S. government to begin recognizing legally valid same-sex marriages, there has been an unprecedented wave of legal triumphs for gay and lesbian couples. Out of 81 cases pending in 32 states, marriage equality has prevailed 41 times and lost only twice in both state and federal court.
The justices have gotten involved in marriage equality only three times since DOMA, twice delaying same-sex nuptials from going forward in Utah, and another time in Virginia. Some analysts saw the action as an encouraging sign that the high court would soon take up appeals out of those states, as it did not make sense to block same-sex couples from marrying then only to allow them do so in a matter of months. But that argument proved incorrect with Monday’s action.
By denying review to marriage equality cases out of Indiana, Oklahoma, Utah, Virginia, and Wisconsin, the justices allowed the federal appeals courts covering those states to have the last word. And that “word” was that banning same-sex nuptials violates the U.S. Constitution’s guarantee to equal protection and due process under the 14th Amendment. Marriage equality is now law of the land throughout those federal circuits, which is why six more states will soon see their same-sex marriage bans upended.
Virginia Gov. Terry McAuliffe, a Democrat who has openly opposed his state's same-sex marriage ban, called the Supreme Court's action an "historic and long overdue moment" for the Commonwealth and the country. According to Virginia Attorney General Mark Herring, the first chief lawyer in the nation to successfully argue against his state's same-sex marriage ban, Virginia clerks can begin issuing marriage licenses to gay and lesbian couples as early as 1 p.m., NBC News' Pete Williams reported.
"On issues ranging from recognizing same-sex marriages to extending health care benefits to same-sex spouses of state employees, Virginia is already well-prepared to implement this historic decision," McAuliffe said in the statement. "Going forward we will act quickly to continue to bring all of our policies and practices into compliance so that we can give marriage between same-sex partners the full faith and credit they deserve."
Indiana's Republican Attorney General Greg Zoeller issued a less enthusiastic statement declaring that county clerks would be required by federal court order to issue marriage licenses to same-sex couples.
"Defending Indiana's statue at trial and on appeal was our duty as attorney for our state government and was necessary," said Zoeller. "Our legal system is based on the bedrock principle that both sides in a dispute will be zealously represented by counsel who will advocate for their clients so that the courts can weigh the arguments and decide. Our constitutional process for testing the validity of statutes worked as intended, and Indiana's legal defense has been conducted with civility and respect for all sides and within existing resources."
Evan Wolfson, founder and president of the pro-marriage equality group, Freedom to Marry, called Monday’s Supreme Court action “a huge step forward” in a statement. However, he also noted that the move “needlessly postpones the national resolution” his group and other marriage equality advocates are pushing for. Without a precedent-setting ruling from the Supreme Court in favor of marriage equality, some state bans on same-sex nuptials could conceivably be able to survive.
Republican lawmakers were largely silent on the Supreme Court's action, except for Texas Sen. Ted Cruz, who called the move "tragic and indefensible."
"By refusing to rule if the states can define marriage, the Supreme Court is abdicating its duty to uphold the Constitution," he said in a statement. "The fact that the Supreme Court Justices, without providing any explanation whatsoever, have permitted lower courts to strike down so many state marriage laws is astonishing. This is judicial activism at its worst."