Liz Levey, ‘Doah Staff Writer
October 22, 2014

’DOAH PHOTO COURTESY OF WWW.THEBLACKSPHERE.NET

Same-sex marriage will be the law of the land – to come but not just yet. Hours after the U.S. Supreme Court cleared the way by turning away several appeals, gay couples started marrying in Virginia.

The message of the Supreme Court’s decision on Oct. 6 let stand five federal appellate court rulings that recognized a constitutional right for gay people to marry. The concrete effects of the non-decision are considerable. At a minimum, it means that the five states whose cases were before the court (Utah, Oklahoma, Virginia, Wisconsin and Indiana) should allow same-sex marriage immediately.

The states covered by the circuit courts that include these states will possibly now allow same-sex marriages as well. This includes the Fourth Circuit, covering Maryland, Virginia, West Virginia, North Carolina and South Carolina; the Seventh Circuit, including Illinois, Indiana and Wisconsin; and the 10th Circuit, which covers Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

The justices never explain why they decline to take a case. It takes only four out of nine votes for the court to hear a case. So why didn’t four justices vote to hear the challenges to the same-sex marriage ban?

The court at the moment is polarized, with four conservatives (Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito) and four liberals (Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan), with Anthony Kennedy holding the balance of power, especially on gay rights issues. It’s possible that neither the liberal nor the conservative set felt confident enough of Kennedy’s vote to risk letting him decide the case. The bottom line is at least six of the nine justices decided to ignore the calls of activists on both sides and let inaction be their action.

Of course this decision doesn’t come without some backlash.  Republican Senator Ted Cruz from Texas was outraged by the outcome.  In a statement that he released stating that he believed that this was “Judicial activism at its worst,” as well as “The Constitution entrusts state legislatures, elected by the people, to define marriage consistent with the values and mores of their citizens. Unelected judges should not be imposing their policy preferences to subvert the considered judgments of democratically elected legislatures.”

The move does not prevent the Supreme Court from taking up the issue in the future; it perhaps could come up later in the current term. Nevertheless, many gay rights backers think the high court is quietly backing the wave of court rulings across the country finding a right to same-sex marriage.