State bans fall as Supreme Court declines gay-marriage cases

“By refusing to rule if the states can define marriage, the Supreme Court is abdicating its duty to uphold the Constitution.”

— Sen. Ted Cruz, R-Texas

“Any time same-sex couples are extended marriage equality is something to celebrate, and today is a joyous day for thousands of couples across America who will immediately feel the impact of today’s Supreme Court action,” Chad Griffin, president of the gay rights group Human Rights Campaign, said in a statement.

The court’s stunning decision not to hear any of the seven marriage cases that had been pending before it effectively eliminated same-sex marriage bans in Virginia, Indiana, Wisconsin, Utah and Oklahoma. The decision also undercuts bans in six other states covered by the three appellate courts that have ruled.

“I would call this a huge step forward, but the job is still not done,” Evan Wolfson, the president of Freedom to Marry, said in an interview.

A denial of a petition to the high court leaves intact the lower appellate court decisions that struck down the five state bans. Stays that delayed the effect of the rulings ended with the Supreme Court’s action, and same-sex marriages began within hours in Virginia, Wisconsin and Indiana.

Utah officials, who had been vigorously defending the state’s ban, likewise capitulated after the court’s decision. Oklahoma began issuing marriage license to same-sex couples Monday.

“Each state agency has been advised to begin today to recognize all legally performed same-sex marriages,” Republican Utah Gov. Gary Herbert said via Twitter, adding that he was “surprised and disappointed” in the court’s decision.

Practically speaking, the high court’s decision also invalidates same-sex marriage bans in Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming. Those states are part of the circuits where appellate courts have ruled.

“I think it might take a little paperwork, or a court order,” Wolfson said, but added that “this opens the door” to ending the those states’ bans.

Mary Bonauto, an attorney with Gay & Lesbian Advocates & Defenders, called the decision “fantastic news” that sends a “powerful signal to the many other courts considering the issue that there is no reason to delay and perpetuate the harms to same-sex couples around the nation.”

Before the court’s decision Monday, 19 states and the District of Columbia had permitted same-sex marriages. With the decision, 30 states as well as the District of Columbia will permit same-sex marriages.

The court’s decision also means the question of whether the Constitution protects the right of same-sex couples to marry will continue to percolate in regions where appellate courts haven’t ruled.

A decision is still pending by the conservative-leaning Cincinnati-based 6th U.S. Circuit Court of Appeals, which heard challenges Aug. 6 to same-sex marriage bans in Kentucky, Michigan, Ohio and Tennessee. A highly regarded George W. Bush administration appointee, Judge Jeffrey Sutton, is widely considered to be the swing vote in the case.

Another conservative-leaning circuit, the New Orleans-based fifth, has yet to issue a ruling. Cases it could consider are from Texas, where a judge struck down the state’s ban, and Louisiana, where a federal district judge upheld one.

“The court’s decision not to take up this issue now means that the marriage battle will continue,” noted Byron Babione, senior counsel for the conservative Alliance Defending Freedom, stressing that there are still “cases working their way to the Supreme Court.”

South Carolina Attorney General Alan Wilson wasn’t yet willing to concede. “Until the courts have ruled on the matter, South Carolina will seek to uphold our state constitution,” he said.

The still-unresolved questions include what part of the Constitution, precisely, protects same-sex marriage rights. Lower appellate courts have based their rulings on varying rationales, from a fundamental right to marry to a guarantee of equal protection.

Some justices may also be leery of tackling an issue that has been so socially divisive. All recall the 1973 Roe v. Wade decision protecting abortion rights, in which a narrow court majority sought to resolve a dispute while it was still politically unsettled.

“A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say,” Justice Anthony Kennedy said earlier this year.