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Religious Tolerance logo

Attaining marriage equality: Marriage by same-sex couples (SSM)

Part 1: 2014-OCT-06: U.S. Supreme Court
refuses to hear appeals from 4th, 7th, and 10th
Circuit Courts of Appeal
. This decision will bring
marriage equality to 11 states.

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LGBT symbol2014-OCT-06: Today, the U.S. Supreme Court created a major impact on marriage equality in the U.S. by simply taking no action:

The U.S. Supreme Court decided to not hear the appeals:

In each of the lawsuits one of the Circuit Courts had:

  • Received and analyzed briefs from the plaintiffs, defendants, and interested parties,

  • Had held hearings,

  • Heard and analyzed testimony,

  • Issued a ruling in which they found that state's ban on marriages by same-sex couples is unconstitutional because it violates the due process and/or the equal protection clauses of the 14th Amendment of the U.S. Constitution.

  • Had placed a stay on their decision so that couples would not be able to marry right away, pending an appeal to the U.S. Supreme Court.

In the language of the Supreme Court, granting certiorari means that the high court accepts the appeal of a lawsuit from a lower court. This is usually from a Circuit Court, but sometimes it is from a state Supreme Court. To not grant certiorari means that the lower court's ruling becomes firm and final. As soon as minor technicalities were cleared up, because of the high court's decision to not grant certiorari, same-sex couples in these five states were able to purchase a marriage license and be married. They instantly pick up hundreds of state benefits and protections, and access to 1,138 federal benefits and protections -- just like opposite-sex couples.

The court offered no explanation for their decision. They are not required to. However, they have often restricted certiorari in the past to situations where multiple Courts of Appeal have issued conflicting rulings on the same topic. The Supreme Court is then generally willing to step in to resolve the conflict. However, as long as the lower courts continue to be unanimous in their decisions, the Supreme Court often prefers to let the matter be determined by the lower courts and to not become involved themselves. 5,7

The U.S. Supreme Court refuses certiorari for most appeals. However, many commentators had expected that the Court would:

  • Accept the appeals from one or more Circuit Courts' same-sex marriage cases,

  • Decide whether same-sex marriages are to be available, or not, everywhere across the entire country, and

  • Issue their ruling during mid-2015 or 2016.

There were many factors that seemed to point to the likelihood of the Supreme Court granting certiorari here:

  • Debate over marriage equality in the U.S., has grown to become perhaps the main religious conflict of our time, surpassing even women's access to abortion within many faith groups.

  • There are on the order of 30 million people in the U.S. who are -- or will find out later in life that they are -- lesbian, gay, or bisexual. Many of these want -- or will want -- to marry a person of the same sex that they love and to whom they want to commit themselves for the rest of their life. The number of people affected makes marriage equality a very important matter to resolve quickly, nationwide.

  • During 2014-SEP, Attorneys General from 17 states filed a joint amicus curiae ("friend of the court") brief with the U.S. Supreme Court urging that the Court accept one or more of these appeals and rule whether same-sex couple have a right to marry throughout the U.S. More details.

  • Also during that month, five conservative Christian groups and denominations that oppose marriage equality filed briefs with the U.S. Supreme Court asking them to resolve the marriage equality conflict nationwide as soon as possible. More details.

In addition to the five states directly involved with the Supreme Court's decision, there are six other states that are indirectly involved. That is because when a Circuit Court issues a ruling that is finalized because the Supreme Court denies certiorari, then the decision will usually apply to all of the states under that Circuit Court's jurisdiction. There are 11 Circuit Courts in the U.S. Each has jurisdiction over three to eight states. So, marriage equality will come also to: Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming. At least one more court proceeding is needed before same-sex couples will be able to marry in these six states. 7

This means that same-sex couples will be able -- either on 2014-OCT-06 or in the near future -- to freely marry in 30 states! This means that about 60% of the U.S. population will live in an area where same-sex couples can marry.

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Responses to the Supreme Court's decision:

Evan Wolfson, is the president of Freedom to Marry, a national group that promotes marriage equality. He said:

"The court's letting stand these victories means that gay couples will soon share in the freedom to marry in 30 states, representing 60% of the American people. But we are one country, with one Constitution, and the court's delay in affirming the freedom to marry nationwide prolongs the patchwork of state-to-state discrimination and the harms and indignity that the denial of marriage still inflicts on too many couples in too many places." 7

Webmaster's comment: In common with so many commentators on this topic, Wolfson refers to same-sex couples as composed only of gays and lesbians. In doing so, he ignores many same-sex couples which consist of one or two bisexuals.

Brian S. Brown, is president of the National Organization for Marriage (NOM). This is the largest national organization devoted to preserving marriage inequality. He wrote:

"We are surprised and extremely disappointed that the US Supreme Court has refused to grant review of the same-sex marriage cases pending before them. This is wrong on so many levels. First, the entire idea that marriage can be redefined from the bench is illegitimate. Marriage is the union of one man and one woman; it has been this throughout the history of civilization and will remain this no matter what unelected judges say. Second, it's mind-boggling that lower court judges would be allowed to impose the redefinition of marriage in these states, and our highest court would have nothing to say about it. Third, the effect of the lower court rulings is to say that a constitutional right to same-sex ‘marriage' has existed in every state in the union since 1868 when the 14th Amendment was ratified, but somehow nobody noticed until quite recently. That's the absurd belief we are being told to accept.

"It's possible that the Supreme Court wants to wait to take a case when a Circuit split develops so that it can rule in favor of the people's right to define marriage as it has always been defined. We're hopeful that the 6th Circuit Court of Appeals will rule in our favor and that the Supreme Court will then take that case and decide that marriage is not unconstitutional."..." 6

We find it surprising that so many conservative Christians still believe that marriage has always been restricted to one woman and one man. Brown's main religious text, the Bible, describes dozens of marriages composed of one man and multiple women. Solomon held the record: 700 wives and 300 concubines.

Brown's comment about the 14th Amendment is important to consider. The reason why marriage equality is suddenly such a hot topic right now in the U.S. is that beliefs about lesbians, gays and bisexuals have changed so much over the past few centuries:

  • During colonial times same-gender sexual behavior was considered in law to be a crime against nature punishable by execution.
  • In the 20th century, prior to 1973, homosexual and bisexual sexual orientations were regarded as a mental health condition by most mental health professionals. In that year, the American Psychiatric Association determined on the bass of research studies that these orientations were simply normal, natural forms of sexuality for a minority of adults.

  • Lesbian, gay, bisexual and transgender groups have been actively promoting marriage equality as a major goal since the mid 1990's.

  • In the lawsuit Lawrence v. Texas, the Supreme Court declared in 2003 that all 13 state anti-sodomy laws that criminalized same-gender sexual behavior were unconstitutional. Since then, consensual same-gender sexual behavior by adults in private were legal.

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Michelle Cottle, "What Is ‘Natural Marriage?’, " The Daily Beast, 2014-MAR-27, at: http://www.thedailybeast.com/
  2. The Family Research Council and "Americans for Truth About Homosexuality" are conservative Christian para-church organizations, which have been designated by the Southern Poverty Law Center as anti-gay hate groups. See: Evelyn Schlatter, "18 Anti-Gay Groups and Their Propaganda," Southern Poverty Law Center, 2010-Winter issue of SPLC's Intelligence Report, at: http://www.splcenter.org/
  3. Robert Barnes, "Supreme Court: Was gay marriage settled in 1972 case?," Washington Post, 2014-AUG-17, at: http://www.washingtonpost.com/
  4. "History and timeline of the freedom to marry in the United States," Freedom to Marry, 2014-SEP-19, at: http://www.freedomtomarry.org/
  5. Richard Wolf, "Supreme Court paves way for gay marriage in Indiana," IndyStar, 2014-OCT-06, at: http://www.indystar.com/s
  6. Brian S. Brown, "National Organization for Marriage Condemns US Supreme Court for Not Reviewing Lower Court Rulings Imposing the Redefinition of Marriage," National Organization for Marriage, 2014-OCT-06, at: http://www.nomblog.com/
  7. "High court ruling may lead to gay marriage in 30 states," USA Today, 2014-OCT-06, at: http://www.usatoday.com/
  8. Tony Perkins, "Supreme Court Refuses to Take Up Marriage Cases, Knowing Nation Will Not Accept Nationwide Redefinition of Marriage," Family Research Council, 2014-OCT-06, at: http://www.frc.org/newsroom/
  9. "Same-sex marriages begin in Virginia," The Washington Post, 2014-OCT-06, at: http://www.washingtonpost.com/
  10. Louis Crompton, "Homosexuals and the Death Penalty in Colonial America," Journal of Homosexuality, Volume 1, Issue 3, 1976, at: http://www.tandfonline.com/

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Copyright © 2014 by Ontario Consultants on Religious Tolerance
Originally published: 2014-OCT-06
Last updated 2014-OCT-07
Author: Bruce A Robinson
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