History When You Least Expect It.

Blue for Equality, Green for Civil Unions, Red for Neither

This morning the Supreme Court declined to hear seven pending appeals related to gay marriage bans. The immediate consequence is that gay marriages are legal in Virginia, Indiana, Wisconsin, Utah and Oklahoma.  Within weeks, it will also be legal in West Virginia, North Carolina, South Carolina, Kansas, Colorado and Wyoming. That latter group of states is not reflected in the above chart because I've been trying to track the gradual progress of this issue in order to show that the law is following the will of the people.  More about that later.

The news caught me by surprise.  It only takes four of nine justices to hear a case and my assumption was that the four conservative justices, who voted against Windsor, would vote to hear it.  But at least one of them chose not to hear all of these cases.  We may never know how the vote went, but there are three plausible scenarios:

1. Chief Justice Roberts didn't want to deal with this case just yet. He might not want the headache and publicity of a high-profile gay marriage case.  I'm pretty sure that deep down, he does not give a shit about this issue, and would much prefer to go back to handing out privileges to corporations and chipping away at the rights of criminal defendants. 

2. The Justices are waiting for a circuit split.  Perhaps he would rather wait until next year or until a circuit split arises.The Sixth Circuit, which covers Michigan, Ohio, Kentucky and Tennessee, might soon rule in favor of the right of states to ban gay marriages. If that happens, then the issue will be more pertinent a year from now and even some of the liberal judges might vote to hear that case.

3.  Antonin Scalia had a moment of integrity. Well, stranger things have happened.  In his Windsor dissent, Justice Scalia predicted that the Court's opinion would inevitably lead to a ruling that states did not have the power to ban gay marriages.  After all, the Windsor majority held that the federal government could not deny the due process rights of American citizens.  It's not much a of a leap to infer that state governments also could not do so.  By that logic, the principled thing to do would be to let the lower court opinions stand.  Tony, if that's what you did....I salute you.  But let's just say I have my doubts.

Where we Stand and Where We Go Next.

Whatever the reason, the headline is that more than 50 million people will live with marriage equality.  For the first time, some permanent damage has been done to my underlying theory about the spread of this freedom tracking with democratic trends.  It's obvious at a glance that blue states are nearly unanimous in allowing gay marriage.  But now a small number of red states have marriage equality too.  Included among them is Utah, the state where the lowest percentage of voters chose the President last time out.  Wyoming, the President's 2nd worst state in 2012, will soon join Team Equality too.

The next big decisions will come from the sixth and ninth circuits.  If Marriage Equality prevails in both, only Deep South and a swath of the Great Plains will not have full marriage equality.  If there is a split, then the state by state fight will resume for another year.  And this time next year, I'll probably be blogging about how the Supremes are going to take a case and give us a final answer. And that opinion will come out at the start of the next next general presidential election.

Good times.