On Monday, the Supreme Court denied certiorari to lower-court rulings upholding marriage equality in five states, effectively ending the fight in 14 states. Yesterday, the 9th Circuit, which covers the Pacific Coast and much of the Mountain states, ruled in favor of equality, making it the law in 35 states plus DC:
The Ninth Circuit already was on record for striking down California’s ban, “Proposition 8,” although that decision did not remain on the books because of a procedural flaw when the case went to the Supreme Court last year. Even so, same-sex marriage is legal in California under an earlier ruling by a federal trial judge.
In addition, the Ninth Circuit applies a tougher standard — heightened scrutiny — for laws that are challenged as discriminating against gays, lesbians and transgender people, and no marriage ban has yet survived that test.
In the Idaho case, the new decision upholds a federal trial judge’s decision against that state’s ban. In the Nevada case, the ruling overturns a decision by a federal trial judge in favor of that state’s ban.
It is possible that Idaho officials could try to get the full Ninth Circuit bench to reconsider the ruling, or they could seek to take the case on to the Supreme Court. However, the Ninth Circuit previously refused en banc review in the “Proposition 8″ case. And, the Supreme Court’s refusal on Monday to review the three other federal appeals courts’ decisions that came out the same way might suggest little hope of succeeding with a challenge before the Justices.
Sullivan is, as one would expect, beside himself:
An idea that once seemed preposterous now appears close to banal. The legal strategy that Evan Wolfson crafted from the early 1990s onward – a critical mass of states with marriage equality before a definitive Supreme Court ruling – has been vindicated and then some. The political and cultural strategy we pioneered at the same time – shifting public opinion slowly from the ground up, tapping into the deepest longings of gay people to become fully part of their own families and their own country for the first time, talking to so many heterosexual men and women about ourselves for the first time – also succeeded.
What I also love about this conservative but extraordinary decision from SCOTUS is that it affirms the power of federalism against the alternatives. Marriage equality will not have been prematurely foisted on the country by one single decision; it will have emerged and taken root because it slowly gained democratic legitimacy, from state to state, because the legal and constitutional arguments slowly won in the court of public opinion, and because an experiment in one state, Massachusetts, and then others, helped persuade the sincere skeptics that the consequences were, in fact, the strengthening of families, not their weakening.
I think of all those who never saw this day, the countless people who lived lives of terror and self-loathing for so, so long, crippled by the deep psychic wound of being told that the very source of your happiness – the love for someone else – was somehow evil, or criminal, or unmentionable. I think of the fathomless oceans of pain we swam through, with no sight of dry land, for so long. I think of the courage of so many who, in far, far darker times than these, summoned up the courage to live with integrity, even at the risk of their lives. And I cherish America, a place where this debate properly began, a place where the opposition was relentless and impassioned, a country which allowed a truly democratic debate over decades to change minds and hearts, where the Supreme Court guided, but never pre-empted, the kind of change that is all the more durable for having taken its time.
I'm glad my friends can marry in Indiana now, and I'm glad that, within a year or two, every committed couple will have the option regardless of their sexes.