news: scotus + marriage round-up


For your Tuesday morning, here’s some of the commentary that’s come across my desk regarding the Supreme Court’s decision not to hear any of the pending cases regarding marriage equality:

Nina Totenberg @ NPR’s Morning Edition: Supreme Court Declines to Take Up Gay Marriage Appeals.

Lyle Denniston @ SCOTUSBlog: Many More Same-Sex Marriages Soon, But Where?

With not a single dependable hint of its own constitutional view of same-sex marriage, the Supreme Court in one fell swoop on Monday cleared the way for gays and lesbians to wed in a batch of new states — starting first in five more states, and probably adding six more in the coming weeks.  If that happens in all eleven, it will mean that same-sex marriages would then be legal in thirty states and Washington, D.C.

Amy Howe @ SCOTUSBlog: First Monday Surprise on Same-Sex Marriage: In Plain English.

We all assumed that the issue would be back again at the Court before too long, and that expectation only increased as lower federal courts around the country started to rely on the Court’s decision inWindsor to strike down other states’ bans on same-sex marriage – in Utah, Virginia, Oklahoma, Indiana, and Wisconsin.   All told, by last Monday the Court had before it seven different petitions asking the Court to weigh in on whether states can prohibit same-sex marriage.  With all of the parties on both sides in all of the cases in agreement that the Supreme Court should take up the question, review seemed inevitable.

Until this morning at 9:30, when the Court turned down all seven of the petitions, without comment.

Paul Waldman @ The American Prospect: Is Nationwide Marriage Equality Now Inevitable? Almost But Not Quite.

But there is one scenario by which what today seems like an inevitable forward movement for marriage equality could be undone, and it may be the only hope conservatives have left. It involves a Republican winning the White House in 2016 and a liberal justice retiring, to be replaced by a conservative.

Amy Davidson @ The New Yorker: The Supreme Court’s Biggest Gay Marriage Decision.

It turns out, though, that the historic fifty-state case might already be on the books. Its name is Windsor v. United States and it was decided in the summer of 2013. Edith Windsor, a widow in her eighties, had challenged the Defense of Marriage Act (DOMA), which kept the federal government from recognizing state-sanctioned same-sex marriages. In Windsor’s case, that meant that she was left with a large estate-tax bill when her wife, whom she had nursed through a long illness, died. (Ariel Levy wrote about Windsor’s wondrous marriage to Thea Spyer in her Profile “The Perfect Wife.”) Windsor won, with the help of her lawyer, Roberta Kaplan. The thought at the time was that Windsor’s victory did not bring equality to any new state. (Although, arguably, no state truly had marriage equality before Windsor, given the constraints of DOMA.) But, as lower courts have read the Windsor decision, they have noticed that its language and legal reasoning, which invokes due process and equal protection, silently condemns state bans on same-sex marriage as well. And, one after the other, they’ve overturned those bans. If they keep doing so, the Supreme Court won’t have to rule again. (I’ve written about this possibility before.)

Got links? Drop ’em in comments! or send them in to queernea [at] gmail [dot] com.


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