WASHINGTON — Same-sex marriage is on the verge of becoming a legal reality in 60 percent of America’s states.
The U.S. Supreme Court paved the way Monday (Oct. 6) for marriages between people of the same sex to be legally recognized in 11 additional states. When that seemingly assured expansion takes effect, gay marriage will be legal in 30 states and the District of Columbia.
The justices set in motion the dramatic spread of same-sex marriage when they denied review of federal appeals court decisions overturning laws in five states that defined marriage as only between a man and a woman. The high court’s orders in the cases, issued without comment, mean gay marriage will be legal in those five states and, presumably by extension, in six other states located in the same federal appellate circuits.
The Supreme Court’s refusal to accept the cases leaves open the question of the constitutionality of same-sex marriage nationally, but it appears highly unlikely the current court would invalidate homosexual unions.
“The court’s decision not to take up this issue now means that the marriage battle will continue. Several federal courts – including those in the 5th, 6th, 8th, and 11th circuits – still have cases working their way to the Supreme Court,” said Byron Babione, Alliance Defending Freedom Senior Counsel.
He said that ADF will continue to remain in the critical effort for the freedom of the people. “The people should decide this issue, not the courts,” Babione continued.
Russell D. Moore, president of the Ethics & Religious Liberty Commission, called the high court’s refusal to hear the appeals is an “immediate expansion of gay marriage.”
Moore said that the church must not respond by jettisoning “a Christian sexual ethic in order to acclimate to the cultural moment. We have no authority to revise what Jesus handed down to us. And the church must not respond with a siege mentality. We live in an era in which marriage is redefined and confused. So did many of our forefathers and foremothers. The sexual revolution didn’t start at Woodstock. It is always with us.”
He said in a written statement, “Let’s hold fast to what the Gospel reveals about the meaning of marriage and the Gospel behind it. Let’s articulate a Christian vision of what marriage should be, and let’s embody that vision in our churches. Let’s love our gay and lesbian neighbors. Let’s move forward with persuasion and with confidence.”
The Supreme Court’s refusal to hear the appeals came in spite of requests from both sides of the same-sex marriage debate that it rule soon on the question of constitutionality. The ERLC joined four other religious organizations in a September friend-of-the-court brief urging the justices “to end the divisive national debate.” The current legal ambiguity is burdening religious organizations and people of faith, they said.
The justices’ new orders left standing appeals court opinions invalidating the marriage laws of Virginia (Fourth Circuit Court of Appeals), Indiana and Wisconsin (Seventh Circuit) and Oklahoma and Utah (10th Circuit). The orders should take effect in other states in those circuits — North Carolina, South Carolina and West Virginia in the Fourth Circuit, and Colorado, Kansas and Wyoming in the 10th Circuit, according to SCOTUSblog.com.
Appeals courts in at least four other circuits are considering similar laws from other states. At least one of those appeals courts could uphold a law or laws limiting marriage to a male and a female. A Sixth Circuit panel seemed to indicate during recent oral arguments it may issue such a decision.
Gay marriage is legal already in 19 states and the District of Columbia. Among the states with legalized same-sex marriage are all those in the Northeast and on the West Coast.
The high court’s latest action could mean it is waiting for a conflict between federal appeals courts before issuing an opinion on the constitutionality of gay marriage. So far, four circuit courts of appeals have ruled against state laws prohibiting same-sex marriage. No circuit courts have upheld such laws.
If an appeals court upholds a state’s marriage protection laws, the Supreme Court’s Oct. 6 orders appear “to pre-ordain that the Court, if it grants review, would overturn such a ruling,” Ed Whelan, president of the Ethics and Public Policy Center, wrote Oct. 6 for National Review Online. “For it is difficult to imagine that the Court would let the current judgments against marriage go permanently into effect in those states and then rule in cases from other states that there is no constitutional SSM [same-sex marriage] right.”
Other advocates of the biblical, traditional definition of marriage expressed their disappointment in the court’s latest action.
Ryan Anderson, a Heritage Foundation expert on marriage and religious liberty, called it “an unfortunate setback for sound constitutional self-government and a setback for a healthy marriage culture.”
“The truth of the matter is that the marriage laws in these five states — as in many states across our nation — are good laws that reflect the truth about marriage,” Anderson wrote in an Oct. 6 blog post. “The Supreme Court should have reviewed these cases and should have upheld the authority of citizens and their elected representatives to make good marriage policy. Instead, the Supreme Court left standing bad rulings from lower federal courts that usurped authority from the people by striking down good laws.”
Tony Perkins, president of the Family Research Council, said the Supreme Court’s orders “will allow rogue lower court judges who have ignored history and true legal precedent to silence the elected representatives of the people and the voice of the people themselves by overturning state provisions on marriage.”
Same-sex marriage advocates lauded the high court’s action and promised to press the justices to extend the right to such unions throughout all the states.
The National Gay and Lesbian Task Force is “ecstatic,” said Rea Carey, the organization’s executive director. “While we hoped that the U.S. Supreme Court would decide on the issue of marriage for all 50 states, we are resolute in our work to secure justice, fairness and equality for all.”
Evan Wolfson, president of Freedom to Marry, said, “As waves of freedom to marry litigation continue to surge, we will continue to press the urgency and make the case that America — all of America — is ready for the freedom to marry, and the Supreme Court should finish the job.”
The expansion of same-sex marriage has resulted in a growing clash between the supposed rights of gay couples and the religious freedom of individuals and organizations. Photographers, florists, bakers and other business owners who oppose serving in support of same-sex wedding ceremonies are facing penalties for their refusal. The legal conflict raises questions about whether additional legislation is required to protect religious liberty and conscience rights.
The Supreme Court’s Oct. 6 orders followed a nearly complete judicial sweep by gay marriage proponents in the last 15 months. Courts have issued more than three dozen opinions in favor of gay marriage since the Supreme Court struck down a section of the federal Defense of Marriage Act in June 2013, saying it violated “equal protection” under the Constitution by refusing to recognize same-sex marriages. Though the high court refused to say states could not limit marriage to heterosexual couples, most courts have used the decision as a basis for striking down state laws that define marriage as only between a man and a woman.
Only a handful of decisions by a federal judge and state judges conflict with the pro-gay marriage trend.
The Supreme Court’s orders in the same-sex marriage cases came on the first day of its new term.
— by Tom Strode | BP
Christian News Journal staff contributed to this report.