Not so much that, as, “We don’t have to, so we’re not going to - at least, not at the moment.”
Which brings up the question: why did they grant certiorari for California’s law (which, technically, was not overturned by the Court - the Court just decided that whoever petitioned the Court to hear it had no standing to do so, and if California’s governor and attorney general are re-elected in November - something pretty much in the bag - then nobody with standing is going to bother appealing it, at least for the next four years)?
I suspect Kennedy *did *tell the regressives he wasn’t voting with them anyway, or maybe they all know it anyway, so there’d be no point in their trying again. And I suspect that the progressives told each other, if they even had to, that they didn’t need to do anything to preserve their win, and they don’t.
Remember too that they have a strong sense of collegiality and sense of history. They’re not always each others’ enemies, even when they bitterly disagree. They may all have considered that the matter is settled and the Court’s standing could only be damaged by reopening it.
This way was faster for one thing. I think it sends a pretty strong message to the Circuit Courts also And it lets the conservatives off the hook. Roberts might not like the headline “Roberts Court Approves SSM.”
A decade ago, who would have predicted that (a) a supreme court ruling (or in this case, non-ruling) would make gay marriage legal in 5 states, and (b) it would be so totally non-dramatic… dare I call it routine?
I think its possible that Scalia, Alito, etc. voted against granting cert because they figured that they didnt have the votes, and that they’d rather wait, in the hopes a Republican will be elected in 2016, and Ginsberg will retire.
The five states which were directly involved in the cases have all started issuing licenses, at least in some counties (Virginia, Oklahoma, Wisconsin, Utah and Indiana) as has Colorado.
Wyoming and South Carolina are trying to fight it out. No specific word yet from North Carolina, Wyoming or West Virginia.
I doubt it – both the Electoral College demographics and the 2016 Senate map make it unlikely that Republicans will be in a position to do anything but stamp their feet and delay confirmation of a Democratic-selected-and-approved nominee.
So if say the Wyoming AG instructs clerks not to grant marriage licenses, what is the next step - the district court officers putting him in jail for contempt of court?
Well, no. At this point there isn’t actually a court order saying that Wyoming’s law is unconstitutional. Someone will have to run to court (state court or US District Court? - not sure) and get such a order. That shouldn’t be difficult given that the 10th Circuit’s Utah decision now sets binding precedent for Wyoming.
So what’s next for North and South Carolina and West Virginia? Could they ask for an en banc rehearing in the Fourth Circuit? Is it procedurally barred now? (I’m a little rusty on my federal appellate procedure).
And what if the Fourth Circuit denies an en banc hearing? Can these states ask the Supremes for a stay and get one under the same guise as before?
From my sources, West Virginia will use the old Romer v. Evans argument in reverse. Virginia’s ban is different, the argument goes because the state constitutional amendment showed a special animus towards gay people by denying them a voice in the legislature. With no constitutional amendment, only a statute, West Virginia allows gay people to go the legislature to petition for same sex marriage without jumping a higher hurdle.
Of course it is diving for scraps, but I blame the Supreme Court for shirking their duty.
As some of you know, I am a lawyer in West Virginia. I practice some family law. Let’s say that in a couple of weeks, gay marriage becomes legal here. What about gay divorce? What about residency requirements?
For a few years many same sex couples have gone to D.C., Maryland, or Massachusetts to get married. You can’t get a “gay divorce” in WV because as far as the state is concerned, you aren’t legally married. But there is a one year residency requirement for divorce.
Could the state say no gay divorces for one year because your marriage, even if celebrated, say on June 1, 2007 in Massachusetts, and you have lived in WV since that time, was only recognized by WV on October 22, 2014? You must live here for one year after that.
I’m not saying it will happen, but I can see a lot of shenanigans going on in states that were forced to recognize this.
Oh come on. You realize that in the process of change there are times that one must distinguish between the old and the new. I understand that you are trying to keep forcing the “appropriate” language on our side, but that must be tempered with a realization that certain terms must be used to differentiate between the marriage that has been in existence for centuries and the new one. If you object to the term “gay marriage” then I’ll use another one that sufficiently makes my point.
What I am saying is that the terms “marriage” and “divorce” had one meaning in WV from 1863-2014 and now have a different one with the addition of different types of marriage and divorce. Surely we cannot be prohibited from speaking of those differences.
Yes, the one year period will be moot in one year. Thanks Captain Obvious.
The meanings of “marriage” and “divorce” have not changed. The specific gender makeup of the people availing themselves of these rights has changed. This does not mean that marriage has changed anymore than the word “astronaut” fundamentally changed when Sally Ride flew into space.
As for what might happen in states and situations not specifically covered by today’s ruling: people will take the actions they would like to take, and if the government prevents them, there may be additional lawsuits. Since the particular situation you raise is time-limited, it may not be considered worth it to take it to court rather than waiting it out or moving to another state. Or possibly sometime in 2016 we might be reading a brief article about how the Supreme Court ruled today that Jane Doe and Roberta Roe should not have been denied their right to legally divorce in West Virginia back in 2014.
Disagree. Your second sentence contradicts your first. The traditional meaning of the word “marriage” had a gender component. When you remove the gender component, you change the meaning of the word.
It’s almost like saying that the meaning of “mother” wouldn’t change if some day I said a man could be a mother and said that only the “specific gender makeup of people availing themselves of [the rights of motherhood] has changed.” You would rightfully say that I am being silly.
There was nothing inherently male about the term “astronaut” but it just so happened that all astronauts before Sally Ride were males for one reason or another. I don’t recall any definition of “astronaut” that contained a gender component.
This. Of course what a marriage is has changed. (Not necessarily as a result of same sex marriage, I think that was an effect more than a cause). But marriage (in terms of its legal and social meanings) very clearly means something entirely different than what it used to mean. For a lot of people today, marriage is no longer necessarily about permanence (see: legalized divorce), no longer fundamentally about childrearing (see: the widespread social acceptance of contraception and voluntarily childless married couples), no longer about a man providing economically for his wife (see: increasing numbers of two income households), and no longer about defined gender roles (see: the feminist revolution, increasing numbers of people moving away from the model of wifely submission, and now same sex marriage). For a lot of people, marriage is less and less about childrearing, gender norms, economics, etc. and more and more about love and personal fulfillment. I don’t think gay marriage was the biggest factor in the change, but the meaning of marriage has certainly changed.
By all means, speak of them. I for one would be interested to see a divorce law that couldn’t be amended by changing “the wife/husband/man/woman” with "the other party. Surely if you’re so concerned about speaking of those differences, you must have an example ready at hand.
What they have done, is given an even firmer signal to conservative federal district courts and states, that they don’t have a lot more time to pepare their local governments and constituants emotionally and bureaucratically for this change. two years or maybe at the high end five years, but not long. This court is seeks to be a patient court, but it is sending a distinct signal that certain legal arguments that proponents of same sex bans are likely to make, are of very little interest to them. They see general direction these appellate decisions are heading and they just don’t care to entertain those opposing opinions. The majority of states in this union will have same sex marriage licenses issued in less than one year. The federal courts will not readily tolerate scenarios where Mississippi, Arkansas, etc effectively anull the bonefide marriage contracts that the majority of states are issuing.
I don’t disagree, but here is a paraphrase of the argument over the years:
Liberal: We must not make marriage about permanence. We must allow no-fault divorce!
Conservative: This will change the fundamental definition of marriage!
Liberal: No, it won’t. It just lets unhappy people a way to get out.
Liberal: Marriage is no longer about child rearing.
Conservative: This will change the fundamental definition of marriage!
Liberal: No, it won’t. It just allows a loving couple to be together without the necessity of wanting children.
Liberal: Two income households will and should be the norm.
Conservative: This will change the fundamental definition of marriage!
Liberal: Nonsense. It simply gives women the freedom to pursue careers.
Liberal: Women don’t have to cook and clean. Men can do this stuff as well.
Conservative: This will change the fundamental definition of marriage!
Liberal: Men can get off of their lazy asses and learn how to do laundry.
Liberal: Marriage doesn’t have to be between opposite sex couples.
Conservative: This will change the fundamental definition of marriage!
Liberal: Well, we’ve already gone so far down that road that we can’t go back.
Conservative: We told you that all along!!! And now you agree with us?