WASHINGTON — The Supreme Court’s decision to sit out the legal battle over same-sex marriage will — for now, at least — leave the future of laws prohibiting gays and lesbians from marrying in the hands of lower state and federal court judges. But it also almost certainly means the couples challenging those laws are more likely to win in the end.
The court said Monday that it would not hear appeals from five states whose same-sex marriage bans had been invalidated by lower federal courts. The decision, issued without explanation, will likely lead to recognition of gay marriages in 11 more states. It also allows an avalanche of legal challenges to the remaining bans to keep going forward in state and federal courts, where gay and lesbian couples have overwhelmingly prevailed.
The court’s decision leaves unchanged 20 state laws blocking same-sex unions. Each is already under legal attack, facing challenges in state or federal court, and sometimes both. Challenges to marriage bans already have reached a handful of state appeals courts and the federal appeals courts for the 5th, 6th, 9th and 11th circuits.
Some of those judges had been waiting to see what the Supreme Court would do. The court’s instruction Monday was: Proceed.
Technically, the Supreme Court’s decision doesn’t dictate how those lower court cases should come out. But it sends a signal that’s hard for lower court judges to ignore.
“It’s inevitable that judges on lower courts will be thinking about what this means,” said University of Michigan law professor Sam Bagenstos. “Lower court judges hate to be reversed. They’re always trying to predict what the Supreme Court will do, and I’d be shocked if they aren’t taking this into account.”
No federal appeals court has yet upheld a state law prohibiting same-sex unions. But judges on a 6th Circuit panel hearing a challenge to four state laws earlier this year expressed skepticism that the Constitution requires states to recognize those marriages. And two of the lawsuits are now in front of the conservative judges of the 5th Circuit. If either of those courts upholds a state ban, the justices might be faced with a marriage case that would be harder to sidestep.
And that might be the long-term upshot of Monday’s decision.
By letting gay and lesbian marriages go forward in 11 other states, the justices almost certainly made it harder to reverse course in the future, Yale law professor William Eskridge said. If they do, he said, the court would have to do more than simply prohibit some couples from marrying; it would have to invalidate marriages that have already taken place. “It will become very hard for the Supreme Court to take that back,” Eskridge said.
Click on the slideshow at the top of this page to see where the legal challenges still stand.