One day after the U.S. Supreme Court left intact the decision of appeals courts to strike down bans on same-sex marriage in five states, a similar federal appeals court decision Tuesday cleared the way for two more states.
If the rulings extend to those states under the jurisdiction of appeals circuits that struck down same-sex marriage bans, same-sex marriage could soon be legal in as many as 35 states and the District of Columbia.
However, the U.S. Supreme Court stopped short of an across-the-board decision on the legality of same-sex marriage.
Joe Ura, associate professor of political science, said every appeals court has ruled in favor of same-sex marriage since the 2013 United States v. Windsor decision, which ruled part of the Defense of Marriage Act unconstitutional. Ura said the U.S. Supreme Court, therefore, doesn’t have a reason to step in.
“Absent that contentious legal question — contentious in the sense that the circuit courts are reaching some conclusion — the Supreme Court owns guidelines and traditions in that it shouldn’t step in and answer a question that it needs not answer,” Ura said.
Mary Penrose, professor at the A&M School of Law, said the choice Monday not to review the lower-court decisions that overturned same-sex marriage prohibitions in states including Utah and Oklahoma could indicate the attitude of the court.
“The court’s refusal to grant the objecting states a right to appeal now could also suggest tacit approval of the federal appellate courts’ respective decisions, since the Supreme Court could have taken the cases to protect those states’ rights to regulate marriage,” said Penrose. “It is hard to read the court’s tea leaves.”
Ura said the court could have stronger footing to allow same-sex marriage nationwide if it waits a couple of years.
“[The U.S. Supreme Court will] allow that size of the majority of the American people who support same-sex marriage to grow, continue to allow these courts of appeals to strike these down, continue to allow the number of same-sex couples that are actually married to grow and then it will step in at the end of the process and sort of pacify that, rather than attempting to be sort of a more aggressive agent for change itself,” Ura said.
Ura said that while Texas wasn’t affected by this week’s development, that might not be the case for long.
“It is just a matter of time until a challenge reaches the appropriate federal court, and given the behavior of the circuits so far it is likely that Texas, even though we aren’t affected by these rulings today, we will very soon be living in a state where same-sex marriage is permitted,” Ura said.