Earlier Monday, the Supreme Court chose to not take up five same-sex marriage cases, clearing the way for gay couples to marry in Virginia, Indiana, Utah, Oklahoma and Wisconsin. National Law Journal’s Marcia Coyle said the court “defied conventional wisdom” in refusing to take up any of the five cases. The NewsHour spoke individually to both defenders and opponents of gay marriage to get their take on the Supreme Court’s decision and what it could mean for the future of same-sex marriage in America.
Brian Brown is the co-founder of the National Organization for Marriage and has served as its president since 2010. The National Organization for Marriage is a nonprofit political organization that works against the legalization of same-sex marriage in the United States. Their stated mission is to “protect marriage and the faith communities that sustain it.”
Evan Wolfson is the founder and president of Freedom to Marry, the campaign to win marriage nationwide, and the author of “Why Marriage Matters: America, Equality, and Gay People’s Right to Marry.”
Austin Nimocks is senior counsel and director of legal advocacy for the Center for Marriage & Family at the Alliance Defending Freedom. The Alliance Defending Freedom is a conservative Christian nonprofit organization whose stated goal is to “advocate for the right of people to freely live out their faith.”
James Esseks is the Director of the ACLU Lesbian Gay Bisexual Transgender & AIDS Project. The American Civil Liberties Union (ACLU) is a nonpartisan, nonprofit organization whose stated mission is “to extend rights to segments of our population that have traditionally been denied their rights, including people of color; women; lesbians, gay men, bisexuals and transgender people; prisoners; and people with disabilities.”
1. What is your reaction to the Supreme Court’s decision to not take up any of the gay marriage cases?
BB: “Well, it’s extremely disappointing and it’s also puzzling. The court is essentially allowing stand a number of lower court decisions that redefine marriage and throw out the vote of millions of Americans. And they’re doing it under the absurd idea that somehow when the country in 1868 passed the 14th amendment, that somehow implicit the 14th amendment was the right to same-sex marriage.”
EW: “This is a big day of happiness for millions of Americans, who now are going to be able to share in the freedom to marry. The Supreme Court means that 11 more states will have the freedom to marry, representing 60% of the American people. And that’s a huge step forward. The Supreme Court also is giving a bright green light signal to the other courts and states to move in the direction of the freedom to marry, and head toward our goal of ending discrimination nationwide.”
JE: “I think it’s a fabulous development…There are lots and lots of same sex couples in those states who couldn’t wait longer. They’ve got a partner or a spouse who needs access to health, and they can’t get it because the state either won’t let them marry or won’t respect the fact that they are married.They’ve been together for decades and either one of them is ill, or one of them is 80 and you never know. And they would really like to be able to get married before one of them dies. Cause you can’t fix that after the fact, even if we win freedom to marry in June, or later.”
2. Would you have preferred the Supreme Court to proceed differently?
BB: “The law was clearly on our side, even though these lower courts have taken it upon themselves to not care about the law and only care about their own will. So of course we wanted the Supreme Court to act, and it was disappointing that they didn’t.”
EW: “I certainly wish that the Supreme Court had taken action today to end discrimination nationwide. But a big boost in the right direction is certainly helpful. And we are going to continue to make the case to end this discrimination that couples in the states that are not yet there are experiencing real harm and real indignities and unfairness.”
3. What are the next steps? How will this play out on the state level?
BB: “Well we’re going to make sure…the focus is on the November elections and electing folks who will actually stand up for marriage, and frankly defeating republicans who refuse to stand for marriage, who betray the party platform.”
EW: “The 6th Circuit, 9th Circuit, the 5th Circuit and the 11th Circuit- covering many parts of the country- are all grappling with these cases, and I expect that most if not all of them will also rule as so many other courts- more than 40- have in the past several months in favor of freedom to marry. But you know couples should not have to fight case by case, state by state, year by year for freedom to marry and full protection for their families. We’re one country with one constitution.”
AN: “There are still a lot of cases pending across the nation in the state and federal court. They will continue to be debated and litigated and rulings will happen from both state and federal courts and they will be appealed and the great debate on gay marriage will continue.”
JE: “In the five states that had cases for the court, there are federal court rulings that apply to them that are final and I think all five of those states are saying ‘Ok, yep we see that marriage is a reality’ and I think there are marriages going on in several of them already and probably the others will happen very soon. Then there are the other six states that are covered by the federal appeals court’s rulings here. Those states are Wyoming, Colorado, Kansas, West Virginia, North Carolina and South Carolina. In those, the final federal appeals court ruling that covers them means that the constitution requires them to allow same sex couples to marry. Some of those states, Colorado has already done this, say ‘well look, see what the law is and we will comply.’ If any of the others decide they want to resist, there are lawsuits already pending in most of those states that will be vehicles for getting a ruling from a federal trial court that says indeed each of those states must follow the law of the circuit.”
4. Is there an avenue for appeal in any of these cases? Is there another strategy? (for the conservative)
BB: “The golden ticket to the Supreme Court is the circuit split. There is not yet a circuit split. We look forward to and believe we have a good shot of winning in the 6th circuit, and then you have a circuit split. And then I think it’s very likely that the Supreme Court will then have to grant cert (meaning they will hear a case).”
AN: “What is clear is advocates on both sides will continue to litigate and debate because they didn’t issue a substantive ruling. There’s no guidance or any direction provided by the Supreme Court, so the questions over whether it remains a constitutional mandate or something the people can decide is something that will be answered in courts across the country.”
JE: “In the five states that have cases in the Supreme Court, there’s nothing more they can do. It’s over. In the six states that don’t have a ruling that directly applies to them but they’re in the same circuit, the only way forward for them, if they want to fight, is they don’t comply, they get sued, there will be a ruling issued against them in the federal trial court, they will then appeal that ruling to a federal appeals court that has already ruled against them, they will lose before the federal appeals court and then they can ask the US Supreme Court to appeal that.”
5. How many people will this end up effecting?
EW: “When you die before you are able to get married, when your children or spouse are deprived of a safety net, this is real and tangible injustice. And it’s affecting too many people. It’s not good enough that some people in some states have the freedom to marry.”
JE: “In terms of the percent of the population covered by the Marriage states. Prior to today we were at 19 states plus D.C. and it was 44 percent of the U.S. population lived in Freedom to Marry states. After today it’s 30 states and 60 percent of the U.S. population living in a Freedom to Marry state.”
6. Why do you think the Supreme Court decided against hearing any of these cases? What message does this send to other states who have gay marriage bans or have had bans overturned pending an appeal?
BB: “I have no idea. It’s perplexing, puzzling and it’s frankly an abdication of duty of the court. When lower courts decide to go off rails, the Supreme Court is supposed to step in and be the adult in the room.”
EW: “It’s a question people are asking but it’s not one that can be answered. We won’t find that out for years when the documents are uncovered.”
AN: “Looking at the map and knowing that there are cases pending in virtually every state across country, it’s not surprising they don’t want to hear first wave of cases that comes, which this was…So they may well be waiting till later down the road to take up.”
JE: “It seems to me that they looked at the landscape and said, the courts that have ruled on this issue since Windsor in June of 2013 are getting it right, and we don’t have to get involved until and unless somebody gets it wrong. They were then comfortable letting these rulings go into effect, knowing full well it was going to change the fact on the ground in lots of states. It must be that six justices are ok with this happening, at least for now. If that’s what’s going on in the court it’s something that’s going on in the country as a whole.”
Adelyn Baxter contributed to this report.