Ah, the first Monday in October. A day of great interest to those of us in the law biz, because that’s the day the Supreme Court of the United States officially starts its term.
This year, the Supremes began by, like the dog in the Sherlock Holmes story, doing a curious thing: nothing. They decided not to review the decisions of lower courts which struck down bans on gay marriage in seven same-sex marriage cases.
Because those appeals courts also have jurisdiction over more than just the states the original cases came from, bans on same-sex marriage will almost certainly fall in those other states as well. For example, the U.S. Court of Appeals for the Fourth Circuit, which struck down Virginia’s gay marriage ban on constitutional equal-protection grounds, also has jurisdiction over West Virginia, North Carolina and South Carolina.
Therefore, while a challenge to North Carolina’s egregious Amendment One hasn’t yet reached the Fourth Circuit, it’s legally dead in the water, waiting only for the harpoon, and the Supreme Court isn’t going to try to resuscitate it.
On Tuesday, the mighty Ninth Circuit, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, struck down same-sex marriage bans in Idaho and Nevada. By the time the effects of the decisions are fully felt, 35 states will likely have to recognize the right of same-sex couples to enjoy the same legal rights the rest of us take for granted.
As one might expect, the haters and bigots went nuts. Sen. Green Eggs and Ham himself, Mr. Ted Cruz of Texas, referred to the decision of the SCOTUS not to intervene as “the worst kind of judicial activism.”
Get that? Doing nothing is now “activism.” Proof once again, as if you needed any, that the words “judicial activism,” like the words “liberal” and “leftist,” have been robbed of all meaning other than “anything I don’t like.”
Meanwhile, Sen. Mike Lee of Utah fell back on the tired and hackneyed complaint about “unelected judges”: “Whether to change that definition [of marriage] is a decision best left to the people of each state — not to unelected, politically unaccountable judges.”
Sadly, Sen. Lee, like most right wingers claiming to be defenders and upholders of the Constitution, seems to know very little about it. See, according to that pesky old Constitution, federal judges, including those on the Supreme Court, aren’t elected, and therefore not “politically accountable.”
That’s how the whole thing was set up from the beginning, for the very reason that the interpretation of federal law (including the Constitution) shouldn’t be subject to the vagaries of political opinion, and that you can’t “leave it to the people of each state” if what they decide to do, even via popular vote, violates the Constitution. You got a problem with that, take it up with the Founding Fathers.
It’s particularly amusing because Sen. Lee himself used to work for one of those “unelected and politically unaccountable” judges, namely Justice Samuel Alito, for whom Mr. Lee clerked. So we can assume he knows better and is just playing to the rubes — sorry, I mean the “base.”
As of this writing, the rulings and others like them have not caused the collapse of so-called “traditional” marriage. Despite the fretting of Butch Otter, Idaho’s wonderfully named governor, allowing same-sex marriage has not led “opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies.” At least not any more than they already do.
As Ninth Circuit Judge Stephen Reinhardt drily observed in responding to that argument, “We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs, and rock ’n’ roll.” Dang it, I was so looking forward to that.
All that said, the issue isn’t completely over. It’s entirely possible that another federal circuit — say the Fifth (Louisiana, Mississippi, and Texas), Sixth (Ohio, Kentucky, Michigan and Tennessee), or Eleventh (Alabama, Florida and Georgia) — which still have cases on marriage equality pending, may decide differently than the ones whose decisions the Supreme Court left alone.
That would create the dreaded “split between circuits,” at which point the Supremes would almost certainly decide they needed to step in and resolve the question once and for all as to whether states can deny people the fundamental right to marry and equal protection of the law just because they’re different.
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