On Monday, the Supreme Court declined to hear any of the seven same-sex marriage cases that were pending before it. Procedurally speaking, this means that the seven appellate decisions striking down bans on same-sex marriage will stand.
Practically speaking, the denial clears the way for same-sex couples to marry not only in the five states that were the subject of the appeals – Utah, Virginia, Oklahoma, Indiana, and Wisconsin – but in every other state under the jurisdiction of the Fourth, Seventh, and Tenth Circuits (Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming). The effect has been immediate and dramatic, with states beginning to issue marriage licenses almost as soon as the Court’s decision was made public. On Tuesday the Ninth Circuit followed suit, striking down same-sex marriage bans in Nevada and Idaho and bringing the number of states where same-sex marriage is legal to 35 (plus Washington D.C.).*
The result came as a surprise to many. Most Court-watchers assumed that the justices would hear at least one of these cases, with predictions ranging from hopeful to dire as to their anticipated outcomes. The denial was particularly notable because the Court had issued stays in two of the cases, holding that same-sex marriages could not proceed in Utah and Virginia until the Court made its final decision. As it turned out, Justice Ginsburg’s recent suggestion that the Court would pass on these cases because of the current consensus among appellate courts proved to be prescient. However, the lack of a circuit split does not fully explain the decision, as the Court has often taken cases despite no division among the lower courts. Here, the justices issued the denials without comment or dissent, leaving many to wonder about their motivations or lack thereof.
While the Supreme Court’s inaction has allowed for a civil rights victory for same-sex couples in many states, some have commented that in declining to rule on these cases, it also passed on an opportunity to define (for better or for worse) the constitutional rights afforded to gay, lesbian, and bisexual Americans. As the Washington Post recently observed, gay people can now be legally married in more states than where they are legally protected from job discrimination. The Post points out a particularly glaring irony: in five states (Indiana, Oklahoma, Pennsylvania, Utah, and Virginia), it is now perfectly legal for a gay person to marry a person of the same sex, and at the same time perfectly legal for an employer to fire them for being gay.
Meanwhile, many cities and states have robust protections for employees who face discrimination or retaliation based on their sexual orientation or gender identity, and federal agencies such as the EEOC have recently made clear that LGBT employees can be protected under existing federal law. As we celebrate this victory for same-sex couples, it is important for LGBT employees to continue to use the resources and protections available to them, as we work toward a legal landscape where sexual orientation is finally a federally protected class.
*On Wednesday, Justice Kennedy issued a temporary stay on the Ninth Circuit decision with respect to Idaho, however after receiving briefs on the merits from both sides, the Supreme Court promptly lifted the stay on Friday.