The Washington Post's "Changing landscape of same-sex marriage" map (click to enlarge). Not "flipped" on the map are some "pending appeal" states in two of the three appeals-court circuits where the Supreme Court today let pro-marriage-equality rulings stand: in the Fourth Circuit, West Virginia, North Carolina, and South Carolina; and in the Tenth Circuit, Kansas and Wyoming. Assuming all of these states are added to the "same-sex marriage OK" group, that will make 30.by KenBy now I assume everyone has heard about what the Supreme Court did today in its strange stealthy way. Court-watchers had been focused on the pile-up of appeals concerning same-sex marriage about which the Court had given no indication of docketing or not docketing following its pre-term powwowing last week. It was widely noted that the justices could still do . . . well, whatever they damn pleased. But I don't think anyone saw this coming.Without either specific announcement or any kind of explanation, a mess of those cases turned up today on a list of cases it does not plan to hear, leaving the rulings of the relevant appeals court standing, with the appeals courts now mandated to end any stays they may have held to allow the Supreme Court to consider reviewing their rulings. Since they are all cases where the circuit courts of appeals had ruled against prohibitions on same-sex marriages, the effect would seem to be to make those rulings the law of the land in the Fourth (Maryland, Virginia, West Virginia, North Carolina and South Carolina), Seventh (Illinois, Indiana and Wisconsin), and Tenth (Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming) Circuits. So far, though, only the states involved in the specific cases under appeal -- Virginia, Utah, Oklahoma, Indiana and Wisconsin -- are directly affected.(Virginia Gov. Terry McAuliffe commented: "This is a historic and long-overdue moment for our Commonwealth and our country." Indiana's right-wing scumbag governor, Mike Pence, rose to the occasion by voicing the regret of some people "that the Supreme Court has chosen not to hear arguments on this important issue" but allowing that "people are free to disagree with court decisions but we are not free to disobey them." What a guy!)In addition, just as appeals court judges all over the country have taken the High Court's voiding of Section 2 of the Defense of Marriage Act in June 2013 as official sanction from On High of a constitutional guarantee of marriage rights for all, it seems likely that federal district and appeals court judges will consider this even more clearly the case. It's certainly not the same thing as a straightforward ruling that the Constitution allows or even guarantees a right to same-sex marriage, but the effect seems likely to be almost the same thing. As of early this afternoon, the affected circuit courts were already voiding stays granted for pursuit of the appeal, and prospective spouses were lining up at the appropriate places for the issuing of marriage licenses. In his Washington Post report this afternoon, ("Supreme Court declines to review same-sex marriage cases"), Robert Barnes noted that in Virginia (Fourth Circuit), "The first same-sex marriages were performed in Charlottesville and Richmond shortly after 1 p.m."At ThinkProgress, Ian Millhiser added a note of caution to his post this morning, "The Supreme Court Just Quietly Made Marriage Equality The Law Of The Land In Many States":
One thing that should be noted is that there are still marriage equality cases pending before conservative circuits that could rule against equality. Nevertheless, the fact that marriages are likely to begin very shortly in the states currently subject to court orders will make it very difficult for the Supreme Court to reverse course — and retroactively invalidate those marriages — in a subsequent opinion.
At that point the High Court for the first time will be in the position of having conflicting lower-court rulings on this issue, and presumably is going to have to do something about it. (Ian also notes that even in some of the states directly affected by today's, er, non-ruling, "it may be necessary for plaintiffs in some of those states to seek an order from a federal court requiring states that oppose marriage equality to comply with their obligations under the Constitution." I presume that these are atates not specifically involved in the cases under appeal, but where the circuit courts of appeals will be prepared to apply the same constitutional logic when asked to do so.)SO WHAT DO WE THINK HAPPENED?Speaking of the Court possibly being faced, in the event of a contrary circuit-court ruling, with having to do something underscores that, at least for the time being, it has decided that it would rather not do anything -- and possibly would prefer never having to do anything, just letting those circuit-court rulings stand. This seems to be basically what Justice Ruth Bader Ginsburg has been hoping, preferring an outcome where events incrementally take their course, rather than having the Supreme Court impose a blanket ruling on a country that isn't ready for it, as she among others feels happened with Roe v. Wade, setting the stage for the bloody abortion-rights battle that has raged ever since.But Robert Barnes, in his Washington Post report, did some Supreme Court math, going back to the 5-4 Windsor decision overturning Section 2 of DOMA, opposed by Justices Roberts, Scalia, Thomas, and Alito, then notes that since only four justices are needed to agree to hear the appeal of a case, "that means at least one of those who voted no in Windsor were unwilling to force the court to take up the issue now.Which means that at least one of the thug-justices finked out on their Far Right Wing faithful. Let the finger-pointing begin. Of course it could just be that one or more of the thug-justices, seeing the handwriting on the wall with regard to same-sex marriage, chose to let it go (after all, even assuming they hold to their previous position and hold out hope for having it prevail, they'll be in a stronger position if they have one or more "favorable" circuit-court opinions to hold up against all the others) -- all the better to prepare for the new horrors the thug-Js are preparing to unleash in the new Court term.#