Constitutional Law and Civil Rights

State Net Capitol Journal Spotlight on Constitutional Rights: States Have Mixed Reaction To Court Rulings, Non-Rulings

In a historic non-decision, the United States Supreme Court last week allowed to stand — without comment — the rulings of three separate federal appeals courts striking down same-sex marriage bans across five states. The high court's decision prompted speculation that same-sex unions could soon become legal in as many as 30 states. But just how much and how fast their decision will actually impact those states remains unclear.

The five states most immediately impacted — those whose appeals were denied by the high court's rejection of their cases — were Indiana, Wisconsin, Oklahoma, Utah and Virginia. But the three federal appeals courts involved also have jurisdiction over six more states — Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming — which currently bar same-sex unions.

For some of them, the decision signaled an end to their fight to keep those bans in place.

"For us, it's over in Wisconsin," Wisconsin Gov. Scott Walker (R) told the Associated Press. Walker, who many speculate is considering a run at the 2016 GOP presidential nomination, noted that such bans are not favored by younger voters, who have played a significant role in determining the outcome of the last two presidential elections.

"To me, I'd rather be talking in the future now more about our jobs plan and our plan for the future of the state," Walker said. "I think that's what matters to the kids. It's not this issue."

Indiana Gov. Mike Pence (R) also seemed resigned to the ruling, noting his disappointment but vowing to adhere to it.

"While it is disappointing to many that the Supreme Court has chosen not to hear arguments on this important issue, under our system of government, people are free to disagree with court decisions but we are not free to disobey them," he said in a statement. "Hoosiers may be assured that I and my administration will uphold the rulings of our federal courts concerning marriage in the policies and practices of our state."

But an already bad week was destined to get worse for gay marriage opponents. On Tuesday, the 9th U.S. Circuit Court of Appeals overturned marriage bans in Idaho and Nevada, a ruling that could also soon be applied to Alaska, Arizona and Montana. If so, it would bring to 35 the number of states where same-sex marriage is legal.

Opponents did receive one bit of good news: U.S. Supreme Court Justice Anthony Kennedy quickly granted Idaho's request to stay the 9th Circuit's ruling pending an appeal. Kennedy issued the stay, but mistakenly included Nevada, where officials had already decided to no longer defend the law and to immediately begin allowing same-sex marriages. Kennedy issued a second ruling on Wednesday that lifted the hold on Nevada.

Meanwhile, all five of the primary states involved in the Supreme Court's ruling began issuing marriage licenses to same-sex couples within hours of the announcement. Colorado quickly followed suit; last Thursday West Virginia announced it would do so as well. Utah additionally dropped its appeal of another lawsuit in which it refused to recognize the marriage of a same-sex couple married outside of the Beehive State.

But officials in North Carolina, Kansas, Wyoming and South Carolina insisted they would continue enforcing their states' prohibitions until a court rules against their specific laws.

"The people have spoken on this," Kanas Gov. Sam Brownback (R) told the Associated Press. "I don't know how much more you can bolster it than to have a vote of the people to put in the Constitution that marriage is the union of a man and a woman."

Wyoming Gov. Matt Mead (R) also vowed to have officials there defend the Equality State ban, arguing that the Supreme Court could eventually rule against same-sex marriages should another appeals court choose to uphold a state law banning those unions.

That possibility looms with upcoming decisions in several far more conservative-leaning appeals courts: the 6th U.S. Circuit, which has cases pending from Ohio, Kentucky, Michigan and Tennessee; the 5th Circuit, which has cases from Louisiana, Mississippi and Texas; and the 11th Circuit, which has cases pending from Florida, Georgia and Alabama. Should any of those courts rule in favor of states seeking to uphold their gay marriage ban — and most observers believe the 6th Circuit justices are definitely leaning that way — it could conceivably prod the Supreme Court to finally decide the matter once and for all.

That theory gained significant traction last month when Supreme Court Justice Ruth Bader Ginsburg told students at the University of Minnesota Law School that there was "no urgency" for the high court to get involved in the same-sex marriage issue as long as the appeals courts were all ruling in the same manner. But Ginsburg also specifically noted the impending 6th Circuit decision, saying that "sooner or later" her court would likely have to decide the matter.

In a later interview with the AP, Ginsburg also stated her belief that the court would not sidestep the issue in the way it had once done in ruling on the legality of inter-racial marriages.

"I think the court will not do what they did in the old days when they continually ducked the issue of miscegenation," Ginsburg said. "If a case is properly before the court, they will take it."

Once that happens, there is a mixed opinion on what the justices will do.

"This decision by the Supreme Court sends an extremely strong signal that it is unlikely to reverse these decisions we are seeing right now," says Courtney Joslin, a law professor at the University of California, Davis, where she focuses on family and relationship recognition issues. She further notes that many plaintiffs who have successfully challenged such bans in states like North Carolina only to see those rulings stayed pending further appeals will now petition courts to lift those stays and allow those couples to marry.

Same-sex marriage supporters have also received boosts of late from some of America's largest employers. Almost three dozen major employers, including Amazon, Target, Intel, Cisco and Google, filed an amicus brief in September in support of a challenge to the Texas ban on their same-sex nuptials pending before the 5th Circuit. As reported by Crain News Services, the companies argued that such bans not only deprive their employees of Constitutional rights, they impose "substantial economic and administrative burdens on companies that provide health insurance and other employment benefits to same-sex couples."

Joslin also notes the particular impact that vastly differing state laws regarding gay marriage have on large, multi-state employers.

"If the court does strike down these bans, it would in many respects make things far less complicated for large employers," she says. "They have been dealing with a very complex patchwork of state laws."

Even so, the idea that the high court would automatically strike down gay marriage bans doesn't resonate with opponents. In an interview with The New York Times, National Organization for Marriage president Brian Brown expressed his belief that the court's makeup on same-sex marriage is still far from decided.

"If the liberals on the court had the votes to declare same-sex marriage a constitutional right, why didn't they take any of the cases on offer Monday?" he asked.

The decision from the 6th Circuit is expected the soonest. A three-judge panel has heard arguments on four cases and its decisions could come at any time. Decisions on cases pending before the 5th and 11th Circuit Courts are not expected before next year.

Bird’s Eye View - More states join ranks of those allowing same-sex marriages

The 9th Circuit Court of Appeals struck down same-sex marriage bans in Idaho and Nevada last week. U.S. Supreme Court Justice Anthony Kennedy granted Idaho's request for a stay of that ruling pending an appeal, but the ruling could ultimately impact three other states — Alaska, Arizona, and Montana — over which the 9th Circuit has jurisdiction. The 9th's decision came the day after the U.S. Supreme Court refused to hear appeals of lower court rulings striking down gay marriage bans in Indiana, Oklahoma, Utah, Virginia and Wisconsin, which could lift bans in five other states, potentially bringing the total number of states where gays and lesbians can wed to 35.

— Compiled by RICH EHISEN

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