- The Washington Times - Monday, October 6, 2014

The Supreme Court made history Monday, with a nondecision that effectively moved the country much closer to the day when legal gay marriage is the law of the land.

In a move that surprised but delighted gay marriage activists, the high court declined to take up appeals from five states that ban gay marriage, paving the way for same-sex unions to immediately begin in those states, plus as many as six more states by the end of the year.

The high court’s decision, issued without comment, meant the rulings in the three lower federal appeals circuits striking down bans on gay marriage in Virginia, Utah, Wisconsin, Indiana and Oklahoma are now binding law.

Clerks in those five states issued marriage licenses or conducted marriages on Monday. Clerks in Colorado, one of six other affected states in the federal circuits, also began issuing marriage licenses to same-sex couples.

Gay rights lawyers, eager to expand their victories, began pressing for court action in Kansas, North Carolina and West Virginia, and predicted that, in effect, the Supreme Court’s first day in session may have brought to 30 the number of states with gay marriage.

The justices stopped short of accepting the cases, with the possibility of settling once and for all whether the Constitution guaranteed a right to marriage for gay Americans. Officials in states that still maintain bans on same-sex marriage vowed to continue the fight.

A minimum of four justices is required for the Supreme Court to grant the so-called writ of certiorari to hear the case. Monday’s action means that at least one of the four members of the high court’s more conservative bloc voted not to put the cases on the court’s current docket.

“It’s an incredible day; it’s historic, and I am ecstatic,” Jon Davidson, legal director at Lambda Legal, told a media briefing Monday.

Virginia plaintiff Carol Schall said that reading a Twitter message Monday reading “Cert denied, marriage legal” left her in a “puddle of tears.”

“Our long journey has ended in such joy and such happiness,” said Ms. Schall, who sued for the right to have her California marriage to Mary Townley recognized in Virginia.

Stunned traditional values groups expressed “deep disappointment” that the Supreme Court didn’t weigh in on the landmark social issue and instead let stand “rogue” rulings by judges who cannot be held accountable by the public. The high court in June 2013 had appeared to signal it was willing to let the individual states decide at their own pace whether and when to sanction gay marriage.

“The entire idea that marriage can be redefined from the bench is illegitimate. Marriage is the union of one man and one woman; it has been this throughout the history of civilization and will remain this no matter what unelected judges say,” said Brian S. Brown, president of the National Organization for Marriage (NOM).

NOM and the Family Research Council called for Congress to pass laws to protect states’ rights to define marriage or pass a constitutional amendment defining marriage in the traditional sense.

“This is an unfortunate setback for sound constitutional self-government and a setback for a healthy marriage culture,” said Ryan T. Anderson, Heritage Foundation fellow in religion and free society. “Declining to review these cases does not speak one way or the other to the merits of the cases,” he said. “But it does leave in place bad rulings from the lower courts.”

Theodore B. Olson, co-counsel for the Virginia gay couple and part of the legal team for American Foundation for Equal Rights, savored the day’s events as “extraordinarily exciting.”

“This is a momentous victory for the constitutional promise of equality, dignity and justice for all Americans,” said Mr. Olson. “With the commonwealth’s discriminatory marriage ban finally and conclusively struck down, we are one giant step closer to the day that all Americans, not just Virginians, can enjoy their right to marriage equality under the law.”

Virginia Democratic Attorney General Mark Herring, who declined to defend the state’s ban in court, reacted swiftly, ensuring that Virginia would hold the first gay marriages just hours after the court’s decision became public.

Reaction in red states

Even some Republican governors in red states appeared ready to give up the legal battle, which has gone strongly in favor of gay marriage supporters in recent months.

Indiana’s Republican Gov. Mike Pence reaffirmed his commitment to traditional marriage but said Indiana would follow the law.

Wisconsin Gov. Scott Walker, a Republican who is up for re-election, said the fight against same-sex marriage “is over” in Wisconsin. “It is clear that the position of the court of appeals at the federal level is the law of the land, and we’re going to go forward enacting it,” he said, according to The Associated Press.

“I believe states should have the right to determine their own laws regarding marriage. That said, we are a society of laws, and we will uphold the law,” said Utah Gov. Gary Herbert, adding he had informed state officials to recognize all legally performed marriages, including those for same-sex couples.

Utah Attorney General Sean Reyes said his office would be reviewing the case, Kitchen v. Herbert, to seek clarity on issues pertaining to marriage recognition and adoption. “It’s time for people of good will on both sides of the issue to come together now and heal any rifts. We are all Utahans,” Mr. Reyes said.

But in Oklahoma, a combative Gov. Mary Fallin recalled that her state’s 2004 amendment, which says only unions of one man and one woman are valid, was passed by a 3-to-1 margin by voters in 2004.

“The people of Oklahoma have the right to determine how marriage is defined,” the Republican governor said, but now the will of the people has been “overridden by unelected federal justices, accountable to no one.”

“Today’s decision has been cast by the media as a victory for gay rights,” Ms. Fallin said. “What has been ignored, however, is the right of Oklahomans — and Americans in every state — to write their own laws and govern themselves as they see fit. Those rights have once again been trampled by an arrogant, out-of-control federal government that wants to substitute Oklahoma values with Washington, D.C., values.”

In three affected states, gay marriage was up in the air or on hold.

In South Carolina, Attorney General Alan Wilson said his office will keep fighting to uphold the state’s constitutional ban on gay marriage until there is a ruling in that state’s case.

An attorney for the same-sex couple who married in the District and want to legalize gay marriage in South Carolina said she will file a request for an immediate court ruling in their favor, WYFF-Channel 4 in Greenville, South Carolina, reported. In West Virginia, state officials said they were weighing their options, while in Wyoming, a gay marriage lawsuit has a December court date.

In Virginia, conservative GOP Del. Bob Marshall harshly decried the turn of events.

“By failing to gain the support of four justices to hear the appeal of Virginia’s marriage case, the Supreme Court has placed the government of the commonwealth in the hands of two federal judges whose very names are unknown to ‘We the people,’” he said.

“This is a total dereliction of duty,” said Mat Staver, founder and chairman of Liberty Counsel. “Everyone will be affected by same-sex marriage because it is an intolerant agenda that will directly collide with religious freedom,” Mr. Staver said.

Churches and religious organizations in the new states affected by gay marriage should “seek all kinds of legal review” of their bylaws and articles of incorporation, Bruce Hausknecht, judicial analyst for Focus on the Family, told a Citizen Link interview. That’s because they could run into trouble with public accommodation and other laws that forbid discrimination, Mr. Hausknecht said.

Rulings on gay marriage from the 6th and 9th Circuit Courts of Appeals are expected soon.

• Cheryl Wetzstein can be reached at cwetzstein@washingtontimes.com.

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