BY ARI EZRA WALDMAN

The media have been universally shocked at the Supreme Court’s announcement today. Now that we have had time to read several media accounts (including our own Towleroad coverage) we should take a step back and analyze what this means from a legal, political, and practical perspective. I also would like to shed a little more light on how this may have happened and what conclusions, if any, we can draw from it.

Let’s be clear on what did not happen. The Supreme Court did not make a substantive ruling on the constitutionality of banning gays from marrying. Nor did the Court make any ruling on the justice of marriage equality. The constitutional question lives on for another day.

The Court’s denial of the petitions also has no explicit legal effect on anything other than those particular 7 cases for which it denied review and on the circuit court decisions below. It has, in the legal jargon, no precedential value: it does not compel any other court to make a certain decision in a certain way. 

But it does represent the federal courts’ final word on these cases. There are no more avenues of appeal for the anti-equality forces in Wisconsin, Indiana, Utah, Oklahoma, and Virginia, as well as in the other 11 remaining states covered by the Fourth, Seventh, and Tenth Circuits that do not already have marriage equality. That means that loving, committed gay couples can start marrying in those states very soon. Thanks to Virginia Attorney General Mark Herring, “soon” is now. Other states, especially those run by conservative, anti-gay governors, may try to defy the inevitable for as long as they can. But sooner rather than later, clerks from South Carolina to Wisconsin will be issuing marriage licenses to gay couples. They will be strengthening the institution of marriage in their states and throughout the country.

Many are wondering how this could have happened. Some commentators expected (more likely, hoped) that the Court would take at least one of these cases. Some expected the Court to do nothing. Back in June, I argued that there may never be a need for the Supreme Court to take a marriage equality case. I was alone in arguing that then, and there are now several commentators coming around to realize that possibility. The denials today only reinforce my point.

Follow me for one possible explanation for how and why this happened.

CONTINUED, AFTER THE JUMP…

There is now marriage equality in 24 states plus the District of Columbia. Marriage equality will soon come to 6 more states, from South Carolina to Wyoming, because those states are covered by the circuit court decisions that are now the final words on marriage equality in those jurisdictions. That is 60 percent of the states.

Twenty states will remain in a rump anti-equality dystopia. That number is special because it is quite close to the number of states (17) that still had bans on interracial marriage on their books when the Supreme Court decided Loving v. Virginia. That case declared all such bans unconstitutional. It reflected the views of the vast majority of the federal courts through the country. It reflected the views of the majority of Americans. It was fiercely opposed, especially in those 17 states in the South, but the notion that a state could ban blacks from marrying whites is so disgusting today that it is hard to believe even 17 banned the practice.

Before it took Loving, the Court waited. It had the opportunity to hear similar cases several times before jumping on the Loving bandwagon. It could have been because of the apt name; it could have been because some justices were waiting for a liberal majority. More likely, it was strategists on the Court waiting for the right case at the right time, when fewer and fewer states retained the bans. At that point, the country would be ready.

Today, the Court helped us along that road. Soon, marriage equality will become a non-issue. It already sort of is.

But the denials still shocked many. To me, it did not seem all that shocking.

Taking a cue from one of my colleagues, who asked me to do the same: Put yourself in the shoes of one of the Supreme Court’s conservatives. Let’s say, Justice Scalia. Let’s assume that Justice Scalia opposes extending the constitutional right to marry to gay persons. Here’s what you know: You know you have four pro-equality justices against you. You have to know that Justice Kennedy is in their corner, too. So, you realize you have two options: Take the case and have five justices enshrine a federal marriage equality right in the constitution, or do not take the cases and swallow the lower court decisions. You hate the first option. The second option is somewhat better. At least, it keeps the case out of the Supreme Court.

Conservatives like Scalia and Thomas do not want to touch marriage equality at the Supreme Court. Not only do they not want to lose, but they hate the idea of more federal rights, in general. Conservative jurisprudence is all about narrowing the federal Constitution, keeping people out, and letting legislatures answer problems. A federal appellate court saying gays have a federally protected right is bad enough. The Supreme Court saying the same thing is so much worse because it federalizes a right that Scalia doesn’t think is there. So, if you’re stuck with three circuits that have already rejected bans on gays marrying under the federal Constitution, you might as well let them stand with a simple denial without letting the Supreme Court “expand” the text of the Constitution.

That might explain why the conservatives didn’t want to take the cases.

Now, imagine yourself in the shoes of a moderate like Stephen Breyer. You’re cautious and approach your job with “judicial humility.” You may not think the country is ready for a nation-wide right to marry for gay couples. You may want to hear from more courts, appellate or district, and more state legislatures. You may want to wait to take a case until you absolutely have to, i.e., when you have an appellate court decision upholding the constitutionality of a ban.

And, finally, imagine yourself in the shoes of a progressive justice like Ruth Bader Ginsburg. You have strong ideas about equality. Whenever the Supreme Court acts, you want it to be a lasting decision that will never erode and not face a backlash. You also do not feel compelled to take these particular cases because you agree with what happened below. You are comfortable waiting for the right time because you are not satisfied with a five justice majority. You want at least six. You realize that Justices Scalia and Thomas are lost causes. But you think that Chief Justice Roberts, a young man, is not going to be willing to oppose marriage equality and sit on a court for twenty more years. At that time, marriage equality will be as obvious as sliced bread. You want to build support from the ground up to peel off at least one more vote for marriage equality, and you’re willing to wait to attack with overwhelming force. 

Seen in this way, it is possible every justice voted against hearing these cases, but for different reasons.

***

Follow me on Twitter and on Facebook. Check out my website at www.ariewaldman.com.

Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently pursuing his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

The Church of Jesus Christ of Latter-day Saints has issued a response to the Supreme Court’s decision today that let stand the 10th Circuit Court of Appeals ruling overturning Utah’s ban on same-sex marriage. 

Read the statement, in part:

“The succession of federal court decisions in recent months, culminating in today’s announcement by the Supreme Court, will have no effect on the doctrinal position or practices of The Church of Jesus Christ of Latter-day Saints, which is that only marriage between a man and a woman is acceptable to God.

The statement went on to say that churchgoers should continue to reject “persecution of any kind based on race, ethnicity, religious belief or non-belief, and differences in sexual orientation.”

U.S. Senator Mike Lee also weighed in on today’s news, calling the Supreme Court’s decision to not review the appeals “disappointing.”

In related news, Utah Governor Gary Herbert and Attorney General Sean Reyes held a press conference this afternoon with Herbert conceding, “We are a state and a people who believe in upholding the law of the land and that has been determined for us today in a way that may be not satisfactory for some, but it is the law of the land.” 

You can watch a clip of Reyes speaking at the press conference, AFTER THE JUMP…

Previously, “WATCH: Gay Couples Tie the Knot in Virginia, Oklahoma, Indiana, Utah, and Wisconsin” [tlrd]

For the next two weeks, an extraordinary gathering of Catholic Church leaders will meet in Rome to discuss the future of marriage and family. In many ways, it’s the typical collection of older, mostly white men (and, in keeping with the Church’s benighted view of women, one nun). But it could signal the beginning of the end of the love affair between the Catholic Church and the anti-gay evangelical right.

The synod will not reach any conclusion, and it certainly won’t result in a change in Church policy on marriage equality. But would it could do is signal a shift in emphasis, away from the harsh condemnations of Pope Francis’s predecessors toward a less political, more pastoral approach to families of all kinds.

And that would be bad news for the religious right in America.

For the better part of the marriage wars, antigay evangelicals have been joined at the front with the Catholic hierarchy, led by Cardinal Timothy Dolan of New York, who has made attacking gays seem like the most important issue facing the Church today. In fact, hatred of gays become a great unifier among former enemies. Pastor Fred Hagee liked to call the Catholic Church “the great whore of Babylon,” but that didn’t stop the Catholic League’s Bill Donohue from embracing Hagee because they agreed to hate others (us) more than each other.

Rick Santorum’s dismal presidential candidacy only solidified the relationship between conservative Protestants and the Catholic leadership. Santorum is Catholic, but he was the candidate who spoke the language of the Protestant religious right. Evangelicals didn’t exactly trust Romney (or his Mormonism), and Newt Gingrich’s marital track record left a lot to be desired. Of all the candidates, Santorum was the one who resonated the most with evangelicals, because he saw the world the way they did: black and white, and fast headed to hell in a handbasket.

Pope Francis has already signaled that he’s not thrilled with bishops who think the Church is a better dressed version of the GOP. When it came time to appoint a replacement for Chicago’s Cardinal Francis George, the pope reached well into the ranks to come up with Blase Cupich, the bishop of Spokane. Cupich opposed Washington state’s marriage equality measure in 2012, but he made a point of saying the Church “has no tolerance for the misuse of this moment to incite hostility towards homosexual persons or promote an agenda that is hateful and disrespectful of their human dignity.”

Now that might not sound like much, but contrast it with Bishop Nienstedt of Minneapolis who played a leading role in that state’s campaign and who calls marriage equality a plot by Satan. Or compare it to Cardinal George himself, who defunded a charity that give bikes to poor kids because the charity belonged to an umbrella group that had endorsed marriage equality.

Francis has also apparently demoted one of the most outspoken American bishops, Raymond Burke, moving him to a lower ranked ceremonial position from his powerful Vatican post. Burke is best known for threatening to withhold Communion from Catholic politicians, like John Kerry, whom Burke deemed insufficiently Catholic.

In another sign that the Church is coming off its hard line, Boston’s Cardinal Sean O’Malley gave an interview in which he said that Catholic schools’ firings of LGBT teachers is a situation that “needs to be rectified.” O’Malley is well regarded by the pope, so he’s not speaking out of turn.

It would be a material change for the better if the Church stopped firing teachers and asking elderly gay parishioners to get a divorce. But it would also have a big political impact in the U.S. The antigay religious right has depended on the Catholic bishops to help carry the case for them and, just as importantly, to give them extra credibility. If the pope decides that the Church should focus more on things like poverty, then the political landscape will be very different.

Already, conservatives are showing signs of panic. A group of four dozen Catholic and evangelical conservatives has issued an open letter to the pope, urging him to “support efforts to preserve what is right and just in existing marriage laws, to resist any changes to those laws that would further weaken the institution, and to restore legal provisions that protect marriage as a conjugal union of one man and one woman.” Among the luminaries to sign that letter is evangelical superstar Rick Warren, who insists that he never opposed marriage equality.

Now for a lot of people, the changes will seem small–kind of the same old homophobia, but in new wine skins. But considering that the Church’s clock counts in centuries, not hours, any change would be momentous. And if it sets the anti-gay right further adrift from mainstream politics, all the better. Bishops shouldn’t be making common cause with haters.

Too bad it would take the pope to point that out to them.