February 11, 2015 at 3:23 pm EST | by Chris Johnson
Despite Supreme Court actions, experts warn marriage not a done deal
Supreme Court, gay news, Washington Blade

Legal experts are disputing the notion that marriage equality is a done deal before the Supreme Court. (Washington Blade file photo by Michael Key)

The U.S. Supreme Court’s decision this week to decline a stay on Alabama same-sex marriages was heralded as a surefire sign justices are ready to issue a decision in favor of nationwide marriage equality, but some legal experts are warning: Not so fast.

Nan Hunter, a law professor at Georgetown University, said there’s “no such thing as a done deal involving the Supreme Court” and justices could still determine state prohibitions on same-sex marriage are constitutional.

“The court seems to have taken the position that it will not stop the implementation of whatever results come out of the lower federal courts for the period of time before it issues its own final adjudication,” Hunter said. “For the moment, this means that same-sex marriages are proceeding in many jurisdictions. But it is also the case that the negative ruling by the Sixth Circuit is likewise remaining in effect, so that couples are not able to marry in the states in that circuit. My best guess is that the court does not want to get ahead of itself by seeming to weigh in prematurely.”

Hunter added this approach “leaves all options open for the court’s decision on the merits,” but conveys a message there’s “no alarm” over states opposing same-sex marriage being forced to permit them by court order.

Paul Smith, an attorney at Jenner & Block who successfully argued Lawrence v. Texas in 2003, said “nothing this important is a done deal” until the court rules.

If anything, Smith said, the implications of the stay denial means same-sex couples who married as a result should be able to remain wed in the event the Supreme Court upholds state marriage bans as constitutional.

“It would be very irresponsible for the court to allow tens of thousands of marriages to occur as a result of lower federal court orders and then rule that those orders were wrong,” Smith said. “Actually, there are good arguments that those marriages could not then be undone, think of the anguish and concern such a ruling would cause to the couples involved. So I’m optimistic.”

On Monday, the Supreme Court issued a three-page order indicating it has denied a request from Alabama Attorney General Luther Strange to place a hold on same-sex marriages in his state as litigation that brought marriage equality there proceeds on appeal.

The denial was a noteworthy glimpse into the mindset of Supreme Court justices. The first decision on whether to stay a district court ruling in favor of gay nuptials since the Supreme Court agreed to take up the issue in January demonstrated justices are comfortable allowing same-sex couples to wed before they render a decision as expected by the end of June.

But the stay denial was accompanied by a lengthy dissent from U.S. Associate Justice Clarence Thomas, who, in addition to decrying what he called an “increasingly cavalier attitude toward the states,” said observers will take away the impression the court has already made up its mind on the issue.

“[T]he 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 Court’s resolution of a constitutional question it left open in United States v. Windsor,” Thomas writes. “This acquiescence may well be seen as a signal of the Court’s intended resolution of that question. This is not the proper way to discharge our Article III responsibilities. And, it is indecorous for this Court to pretend that it is.”

After the order came down, a number of media outlets declared the Supreme Court had made a de facto announcement that it would soon find a nationwide constitutional right to same-sex marriage.

In an article titled, “The Supreme Court Just Admitted It’s Going to Rule in Favor of Marriage Equality,” Slate’s Mark Joseph Stern said the order “reveals the justices’ intention to strike down gay marriage bans across the country.” In an article titled, “Marriage Equality is Coming to America This June,” Buzzfeed’s Chris Geidner writes the only remaining question is whether Chief Justice John Roberts and Associate Justice Samuel Alito will the join the majority in striking down all remaining bans on same-sex marriage.

Even the Human Rights Campaign issued a statement titled, “SCOTUS SEZ: THAT’S ALL FOLKS,” with Sarah Warbelow, the organization’s legal director saying “there is virtually zero risk that they will issue an anti-equality ruling this summer.”

Doug NeJaime, a law professor at the University of California, Irvine, said he doesn’t “think anything is certain” until the Supreme Court issues its decision this summer.

“The denial of the stay in Alabama is consistent with other such denials by the court, and so it seems part of a general pattern that began last year,” NeJaime said. “And Justice Thomas had dissented in earlier cert[iorari] denials, including those in unrelated cases, drawing attention to his disagreement with the court’s actions on this question. So I personally don’t think we gain all that much new insight from what has happened regarding Alabama.”

NeJaime predicted lawyers representing same-sex couples in the cases will continue to make the best case for their clients and “won’t be satisfied until they actually have a Supreme Court decision accepting their claim.”

Help is already on the way. Last week, House and Senate Democrats announced they were joining forces in a bicameral brief before the court in favor of a nationwide ruling on marriage equality. Also this week, HRC and Roberta Kaplan, the New York attorney who successfully argued against the Defense of Marriage Act, announced “The People’s Brief,” a legal filing that individuals could sign online urging the Supreme Court to find a constitutional right to same-sex marriage.

Similar to other attorneys, Kaplan said there’s “no such thing as a done deal” with the Supreme Court in any case, but nonetheless said the denial of a stay on same-sex marriage in Alabama is promising.

“The Supreme Court justices are really, really smart people, and they understand the implications of what they do, and they understood surely that by virtue of the denial of the stay in Alabama, that meant there would be another state where gay couples would be getting married,” Kaplan said. “I don’t think that the majority of the court has any intention of un-marrying people after it rules in June.”

To look at the Alabama stay denial from the Supreme Court another way, it wasn’t a definitive moment predicting an inevitable outcome of marriage equality cases before the court, but the latest in a series of actions indicating the court is favorably looking upon the idea of marriage equality.

After all, in October the Supreme Court refused to hear decisions in favor of same-sex marriage made by three federal appeals courts, effectively granting marriage equality in Utah, Oklahoma, Virginia, Wisconsin and Indiana and ensuring same-sex nuptials came to other states within those judicial circuits in short order.

It was only when the U.S. Sixth Circuit Court of Appeals upheld bans on same-sex marriage in Michigan, Ohio, Kentucky and Tennessee that the Supreme Court agreed to grant certiorari to review the issue of same-sex marriage, presumably to consider reversing the appellate court decision.

Moreover, after it denied certiorari for the marriage cases in October, the Supreme Court previously refused requests for stays on same-sex nuptials in states like Idaho, Alaska, Kansas and South Carolina. Most recently, the Supreme Court denied a stay on same-sex marriages in Florida, and much like with Alabama, no federal appeals court has issued a decision on the constitutionality of marriage bans in that jurisdiction.

Adam Romero, senior counsel and the Arnold D. Kassoy scholar of law at the Williams Institute, University of California, Los Angeles, said we can’t say for certain how the court will rule, but the court has issued a “strong signal” by repeated judgements allowing thousands of same-sex couples to marry.

“In other words, the court let the genie out of the bottle and it will not be going back in easily as a purely legal matter and in terms of public perception,” Romero said. “The court must have known all of this — and the effect on these couples’ children — when it allowed same-sex couples to marry in places like Utah, Oklahoma, Virginia, Idaho, Florida, and now Alabama.”

A decision could come down at any time from the U.S. Fifth Circuit Court of Appeals on the marriage bans in Texas, Mississippi and Louisiana, which may once again force the Supreme Court to consider whether or not to stay same-sex nuptials in those states.

But Romero acknowledged the stay denial in the Alabama case is significant because it was the first denial from the Supreme Court after it agreed to take up the marriage issue.

“That court is thus saying: Even though we’re about to decide whether state same-sex marriage bans are constitutional, in the interim the harm to same-sex couples outweighs any benefit of continued enforcement of same-sex marriage bans,” Romero said.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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