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Marriage Equality

What If the Supreme Court Doesn't Take a Marriage Case?

What If the Supreme Court Doesn't Take a Marriage Case?


Even if the Supreme Court justices don't take up any of the same-sex marriage case before them, marriage equality could be on its way to 65 million Americans.

Consensus from Supreme Court watchers is fairly unanimous: The justices will take up at least one marriage equality case when they return for their upcoming session. With litigation proceeding in over 30 states, and in the last month, a few contradictory rulings, it would be unthinkable for the court to avoid the issue.

But what if the unthinkable actually happened, and the Supreme Court decided not to hear any of the marriage cases before it?

It's hard to imagine, but the court could choose to deny a writ of certiorari for the petitions currently pending and anticipated over the next few months. If it did so, the impact would be immediate and huge.

The most significant effect would be the lifting of stays in states where marriage bans have been overturned. Courts had imposed those stays pending final resolution of the cases at the Supreme Court as a last resort. Without that last resort, pro-marriage equality rulings would become the law of the land in Oklahoma, Utah, Virginia, Wisconsin, and Indiana.

Those states alone would account for a massive surge in the number of Americans in marriage equality states. The population of those states adds up to a little over 27 million people.

But it wouldn't stop there. The victories in those states were at the appellate circuit level, which means the rulings would become precedent in neighboring states encompassed by the circuit as well. The pending cases in states like North Carolina and West Virginia wouldn't simply vaporize. They would still have to move through the courts and exhaust all opportunities for rehearing. But with the strong victories permanently enshrined into federal precedent, the chances of success for any antigay litigation would be slim. State officials would be likely to follow the lead set in Oregon and Pennsylvania, where officials simply stopped defending antigay laws after courts found them unconstitutional.

In the Fourth Circuit, the Virginia victory would apply to Maryland, North Carolina, South Carolina, and West Virginia. Maryland has had marriage equality since 2013, but the residents of those other states -- more than 16 million people -- would gain the freedom to marry.

In the Tenth Circuit, the Utah and Oklahoma victories would apply to Colorado, Kansas, New Mexico, and Wyoming. New Mexico has also had marriage since 2013. The remaining states have about 8.7 million inhabitants.

Those two circuits would account for approximately 52 million people living in states that could newly embrace the freedom to marry.

What's more, the Ninth Circuit is preparing to rule on marriage equality as well. Oral arguments, heard Monday, went well for the legal team from Lambda Legal and the National Center for Lesbian Rights, so a favorable ruling could be forthcoming.

If the Ninth Circuit ruled in favor of marriage equality, and if the Supreme Court declined a petition for certiorari, then that victory would cover Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. Several of those states already have marriage equality, but the ones that don't account for 12.6 million residents.

In that situation, it's hard to predict how quickly the cases would be resolved. Courts might wish to rule swifly, so that the urgent matter could be settled. But parties could prolong the litigation by trying to petition the Supreme Court in different states.

But with all of those states combined, in the next few months, the Supreme Court could, in effect, legalize same-sex marriage for about 65 million Americans.

Currently, roughly 137 million people, or 44 percent of U.S. inhabitants, live in a state with marriage equality. Should the Supreme Court deny cert to cases in the Fourth, Ninth, and Tenth Circuits, the proportion of Americans living in a state with marriage equality would increase to about 64 percent.

Of course, it's very unlikely that the Supreme Court would simply deny the marriage petitions out of hand. It's more likely that the justices would hold on to the petitions for a while before deciding which one -- or ones -- to take.

The first opportunity for them to make that decision is rapidly approaching: September 29 marks the court's first conference of the new session.

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Matt Baume