On Monday, the United States Supreme Court quietly denied certiorari on cases from three federal courts of appeals (the 4th Circuit, the 7th Circuit, and the 10th Circuit) that found bans on same-sex marriage to be unconstitutional. The Court’s denial leaves those federal decisions standing, thus making same-sex marriage legal in five states: Indiana, Oklahoma, Utah, Virginia, and Wisconsin. The decision is also likely to mean that the other states covered by those federal appellate court districts—Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming—will also allow same-sex marriage. Or at least, they can’t ban it.
Most surprising to many SCOTUS observers was that the Court made no comment about its decision to deny certiorari. Supporters of both sides of the issue had urged the Court to take the cases and settle the question, yet the Court let the moment pass. Some believe that the Court’s move sends a message to potential future challengers of prohibitions on same-sex marriage. Some suggest that the Court would not have allowed the appellate court decisions to stand (and the same-sex marriages that have and will come because of those decisions) if it was going to define marriage as solely between a man and a woman. Others point out the Court’s preference for not having to decide major social issues before it simply must. Presently, no appellate court has upheld a same-sex marriage ban; thus, there is no split in the appellate courts to resolve. (See here, here, and here for articles discussing the Court’s decision, and here and here for a Wisconsin-specific take.)
While proponents of marriage equality celebrate, most proponents of traditional one-man, one-woman marriage don’t believe the fight is over. Governor Scott Walker, though, seems to have acquiesced. While not endorsing same-sex marriage, Governor Walker acknowledges the issue has been settled for Wisconsin.
This year has been a big year for the status of same-sex relationships in Wisconsin. Earlier this summer, the Wisconsin Supreme Court upheld the state’s domestic partnership statutes, which allowed same-sex couples to register as domestic partners and gain some, but certainly not all, of the rights and obligations of married couples. That statutory scheme was enacted after the state’s ban on same-sex marriage. It always struck me as an attempt to placate same-sex couples—the state’s way to throw some crumbs to same-sex couples because voters decided such couples wouldn’t be allowed to legally marry. Certainly domestic partnership provided legal recognition to a same-sex couple’s relationship. But it was not the full recognition those relationships deserved. It will be interesting to see what happens with the domestic partnership registry now that same-sex couples are allowed to marry in Wisconsin.
(See here for a discussion of the Wisconsin district court’s decision, and here for a discussion of the 7th Circuit’s decision.)
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Here’s an interesting article explaining the subsequent ruling in the Idaho case, which at first blush is mystifying.