The U.S. Supreme Court's acceptance of appeals of 4 SSM cases:
Kentucky, Michigan, Ohio, & Tennessee.
Part 7: 2015-FEB:
Impact of the Supreme Court on the conflict
over SSM in Alabama during 2015-FEB (Cont'd).
We use the acronym "SSM" to represent "same-sex marriage."
"LGBT" refers to lesbians, gays, bisexuals, transgender persons
and transsexuals. "LGB" refers to lesbians, gays, and bisexuals.
The impact of the U.S. Supreme Courts future SSM decision on the Atlanta conflict:
On 2015-JAN-23, U.S. District Judge Callie V.S. "Ginny" Granade of the United States District Court for the Southern District of Alabama issued her ruling in a case involving a lesbian couple who wanted their California marriage to be recognized in Alabama. She had reached the same conclusions as had about 70 state and federal judges during the previous 19 months -- ever since the U.S. Supreme Court issued its ruling in the Wilson v. United States case. In that case, the high court declared a key section of the federal Defense of Marriage Act to be unconstitutional. She concluded that that the Alabama's bans on same-sex marriage were also unconstitutional.
Her ruling was based on the now familiar concept that such bans violate the Due Process and Equal Protection clauses of 14th Amendment of the U.S. Constitution. These clauses require federal, state, and local governments to treat people and couples equally, unless there is a very strong reason why they should be discriminated against.
Lawyers for many dozen states had tried to argue in about 70 same-sex marriage related cases that allowing loving, committed same-sex couples to marry:
- Was such a new concept that its adverse affects on society are not yet measurable and may be found in the future to be very serious.
- May decimate the future birth rate in those states where same-sex marriage is legalized.
- May convince many currently married men and women -- presumably persons with a bisexual orientation -- to quickly divorce their opposite-sex spouse and marry a person of the same sex.
- Would cause many children to be raised in fatherless families led by two women. Some lawyers believed that those children would suffer the same disadvantages as children raised in many fatherless, single parent homes.
- Would cause many children to be raised by parents who were not genetically related to them.
Essentially all of the federal and state courts found such arguments to be unconvincing or even completely without value. Judge Granade was one of the judges who was unimpressed by the state's arguments.
On JAN-26, Judge Granade issued a ruling in a second same-sex marriage case. This involved an unmarried gay couple who are residents of Alabama and wish to marry there. Again she found the same-sex marriage bans in the state constitution and in the state marriage statute to be unconstitutional because they violate the 14th Amendment.
She invoked temporary two-week stays in both cases to give the state sufficient time to appeal them to the 11th U.S. Circuit Court of Appeals.
The plaintiffs asked that the stay be lifted early. The state appealed the case to the District Court and the 11th Circuit Court, asking that the stays be extended until mid-2015 to prevent same-sex couples from marrying while everyone waits for the high court to issue its ruling on same-sex marriage in June or July. This decision is expected to have country-wide implications. Both courts denied the stay extensions. Finally, the state filed a motion with the U.S. Supreme Court asking again that the stay be extended.
The state's request was directed to Justice Clarence Thomas who is the person responsible for emergency appeals from Alabama, and from the other states under the jurisdiction of the 11th Circuit: Florida, and Georgia. A few hours after the District Court's stays expired on FEB-09, Justice Thomas released the high court's decision. The entire U.S. Supreme Court voted and a majority of Justices agreed to refuse the stay extension. And so, marriages began in some Alabama counties within hours. Gradually, during that week, the number of counties that were willing to issue marriage licenses to same-sex couples increased.
Opposite-sex couples were not affected. There were enough marriage license forms to handle all the applicants. There is no maximum quota of marriages each month in the state. The forms looked a little strange with two rows labeled "spouse" and "spouse" instead of "bride" and "groom." But they seem to work properly.
Many commentators interpreted Justice Thomas' response to the stay request as perhaps having telegraphed the probable intention of the full court when it rules on the consolidated cases from four states later in 2015.
Justices Scalia and Thomas were mentioned as having voted to extend the stay in order to prevent same-sex couples in Alabama from marrying until at least late June or early July -- when that the high court is scheduled to make its four-state ruling on marriage equality for everyone.
A few news sources stated that the order to allow the stay to expire was approved by a 7 to 2 vote of the Supreme Court justices. That may have actually happened, but is not known for certain by the public. What is actually evident is that, among the nine Justices on the high court:
- Five or more Justices voted to take no action, although their identities were not revealed. There must have been at least five Justices taking this position because otherwise the stay would have been extended.
- Two Justices, Scalia and Thomas, voted to extend the stay until mid-year, according to Justice Thomas' written response.
- The vote and identity of the remaining one or two Justices are unknown. One or both may have voted to extend the stay, but preferred to remain anonymous. Quite a few Justices are currently of an advanced age and will be retiring shortly. With the rapid rise in public support for marriage equality, they might be concerned about their legacy as viewed by future generations. The high court, and its Justices, have often been criticized for some of their rulings in the past that have been later found to be really inappropriate and out of touch with cultural values:
- The Dred Scott v. Sandford decision in 1857 is one commonly cited case. The U.S. Supreme Court ruled that a slave, Dred Scott, was the property of his owner, and that -- as a piece of property -- he could not be taken from his owner. 5
- A more recent example is the Bowers v. Hardwick case in 1986 which upheld, in a narrow 5 to 4 decision, that a Georgia law criminalizing same-gender sexual behavior by two consenting adults in private was constitutional. 6 That decision was overturned by the Supreme Court in the case Lawrence v. Texas in 2003, with an apology to those adversely affected by the earlier ruling.
The Justices of the U.S. Supreme Court are under no obligation to reveal their vote on this type of request.
Thus the actual vote on this temporary stay might have ranged from 5 to 4 in favor of allowing the stay to terminate on FEB-09, to 7 to 2 in favor. Sadly, we will never know.
Justice Thomas' dissenting opinion criticized most of his fellow Justices for not leaving the stay in place, but:
"... rather than treat like applicants alike, the Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the [U.S. Supreme] Court’s resolution of a constitutional question it left open in United States v. Windsor. ... This acquiescence may well be seen as a signal of the Court’s intended resolution of that question. ..."
"This is not the proper way [for the court to act under the Constitution] and, it is indecorous for this court to pretend that it is." (Emphasis not in the original).
Jesse Choper, a law professor at the University of California-Berkeley said:
"If you read the tea leaves the Supreme Court is leaving, the bans on same-sex marriage can't be permitted. They're unconstitutional."
Michael Dorf, a former law clerk of Justice Kennedy who now teaches at Cornell University said that the ruling on Alabama's stay request is:
"... is further evidence that the court intends to reverse the 6th Circuit [ruling] and find a constitutional right to same-sex marriage." 4
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- Lyle Denniston, "Constitution Check: On same-sex marriage, what is settled, what is not?," Constitution Daily, 2015-JAN-20, at: http://blog.constitutioncenter.org/
- Bob Unruh, "Supreme Court Justices officiated at same-sex 'marriages'," WND Faith, 2015-JAN-19, at: http://www.wnd.com/
- Johnathan Capehart, "Loving the Supreme Court’s decision to take on gay marriage," The Washington Post, 2015-JAN-19, at: http://www.washingtonpost.com/
- Adalia Woodbury, "Clarence Thomas Admits Defeat in the Right Wing’s War on Marriage Equality," Politicususa, 2015-FEB-09, at: http://www.politicususa.com/
- "Supreme Court rules in Dred Scott case,"
This Day in History, A&E Television Networks, 2014, at: http://www.history.com/
- "The gay rights controversy," University of Missoouri-Kansas City, undated, at: http://law2.umkc.edu/
How you may have arrived here:
Copyright © 2015 by Ontario Consultants on Religious Tolerance.
First posted: 2015-FEB-24
Latest update: 2015-FEB-24
Author: B.A. Robinson