Up until last week, it seemed pretty clear that marriage equality was on a track of inevitability. Then a federal Court of Appeals decided to buck the trend. In a 2-1 decision, the court reinstated marriage bans in four states: Kentucky, Michigan, Ohio and Tennessee. Now the Supreme Court is forced to face a reality that it didn’t when it refused to weigh in on marriage equality just last month: a split among the federal courts.
The question is, how much does the latest ruling change the landscape? When there was an unbroken string of victories for same-sex couples, it seemed pretty easy to hope that the Supreme Court would bow to the inevitable and make marriage equality a national right. But last week’s ruling injects a note of uncertainty into the equation.
The majority opinion in the four-state case was issued from Land Where Time Stood Still.
To arrive at their ruling, the two majority judges, both appointees of George W. Bush, studiously avoided all of the legal reasoning from the Supreme Court’s Windsor decision, proving once again that legal principles can easily take a back seat to homophobia, if the will is there.
Instead, the primary legal argument that the justices used was from a one-sentence 1972 Supreme Court decision refusing to hear the case of two men from Minnesota who had sought to marry. (Dissenting Judge Martha Daughtry, who had no problem throwing shade at her colleagues for their stupidity, said that that case was “a legal dead letter” that “lacks only a stake through its heart.”)
The consensus among legal scholars is that the Supreme Court can’t ignore the ruling (the specious reasoning, probably, if you’re in the Scalia/Thomas camp). In fact, on this point, mortal enemies are in agreement, down to the same wording.
“We want a case to go the Untied States Supreme Court as quickly as possible,” said Marc Solomon, national campaign director for Freedom to Marry. “I want this to get before the Supreme Court as soon as possible,” said Brian Brown, president of the National Organization for Marriage.
Obviously, both sides are hoping for a victory. But while the most recent Appeals Court decision might gladden the hearts of the right wing, it doesn’t change the odds in their favor.
Last year’s Supreme Court ruling was sweeping in its language, even if it limited the effect to whatever states chose to decide. But intentionally or not, Justice Anthony Kennedy clearly pointed the way to where this will have to lead. Justice Antonin Scalia, who may be reprehensible but is no dope, made exactly that point in his dissent.
In fact, even the two judges from last week’s ruling admit that they are on the losing side. “From the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen,” wrote Jeffrey Sutton and Deborah Cook. Of course, that didn’t stop them from delivering what Judge Daughtry called “an engrossing TED talk” but not a judicial decision.
But in the end, it’s hard to imagine the five justices who struck down DOMA would decide that couples who have already been married are no longer married. That’s particularly true of Kennedy, who, more than any other justice, has eloquently explained why LGBT rights are worthy of legal protection.
Meantime, the tide keeps rolling in. While the attention last week was on the bad ruling, there were two very good ones. Federal courts ruled that marriage equality was the law in Kansas and Missouri. In those states, at least, it’s 2014 and not 1972.