The Supreme Court refuses the gay marriage question—now what?

Every year, on the first Monday in October, the U.S. Supreme Court begins a new term. This year it began with a bang. The court refused to hear the largest number of petitions requesting certiorari—all of which raised the question of traditional marriage vs. same-sex unions. Virginia, Wisconsin, Indiana, Oklahoma and Utah were asking for reviews of circuit court decisions that ruled their state laws are unconstitutional because they defined marriage as being between one man and one woman.

What makes the Supreme Court rejecting these cases all the more shocking is that the court operates under the “rule of four”—it takes four justices to agree to hear a case. Observers believed that given their earlier dissents in the Windsor case, Justices Roberts, Thomas, Alito and Scalia would be likely to make up the four. Why that did not happen remains a mystery. Secondly, observers had their eyes on two cases, one in Texas and one in Louisiana, which are slated to be reviewed by the U.S. Court of Appeals for the Fifth Circuit, and are, according to veteran Court-watcher, Lyle Denniston, likely to result in upholding traditional marriage laws. This would create a “split” in the circuits which the Supreme Court would hopefully want to resolve.

Even though the court has refused to hear these cases, the pending Virginia petition for review in the case of McQuigg v. Bostic is worth considering because it raises key issues for states with traditional marriage stances. Michelle McQuigg is the clerk of court of Prince William County, Virginia. Her official duties include issuing marriage licenses in accordance with state law. On the other side is a same-sex couple seeking a Virginia marriage license and a same-sex couple demanding that Virginia grant legal recognition for their California same-sex union. These couples had been refused licenses by Virginia, but they were victorious at the Federal District Court and Fourth Circuit Court of Appeals levels. Those courts found that Virginia law and the Virginia Constitution violated the due process and equal protection clauses of the U.S. Constitution. On the other hand, McQuigg was asking the Supreme Court to review and overturn the decisions.

What are the issues at stake? What are the implications of the court sweeping these petitions off the table?

Virginia took the same position which it had taken in the lower courts: The marriage laws should be upheld because they meet the requirements of the “rational basis test.” This is a common approach used by courts to evaluate if state laws pass constitutional muster. Basically, the court would determine if there are good reasons for Virginia to protect traditional marriage. If the court finds such reasons, then, even though it may disagree with Virginia’s policies, the laws must be upheld.

Virginia maintains that its legislature and the people of Virginia have determined by deliberation, debate, and vote that its longstanding commitment to traditional marriage is reasonable and has a “rational basis.” The one-man-one-woman standard for a marriage provides a “naturally procreative relationship” in a “committed union” which connects “children to their mother and father” in a way that no other arrangement can. Traditional marriage creates reasonably stable family units that, in turn, reduce the likelihood of other social problems. Blithely redefining a fundamental social institution—marriage—is a profound change.

Virginia further maintains that a legislative body “is far better equipped” than the courts to anticipate and evaluate the likely ill-effects of a radical redefinition of marriage. Moreover, giving marriage an open-ended definition, what Fourth Circuit Judge Paul Niemeyer called a marriage to “anyone and everyone” and calling that judicially-minted right “marriage,” could serve as a basis for justifying polygamous and incestuous unions in the future.

State government would lose the right to determine marriage policy because the courts “arrogated the power to themselves by construing the Constitution to nationalize a genderless definition of marriage.” This will be the effect of the Supreme Court’s refusal to take these cases in those circuits where traditional marriage has been struck down unless the high court, later in this term, decides to address the question.

The Fourth Circuit’s decision claims that Virginia’s marriage policy and laws should be struck down. Judge Henry Floyd, writing for the majority, boldly asserts that “marriage” is a fundamental right which includes same-sex unions, although admitting that “states have refused to permit same-sex marriages for most of our country’s history.” The majority referenced the language in a Pennsylvania abortion case (Planned Parenthood v. Casey) which described the liberty found in the 14^th Amendment as “the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life.” Apparently to them this language, regardless of its vague contours, was intended to allow individuals to marry persons of the same sex with state approval. The Fourth Circuit opinion claims that “over the decades, the Supreme Court has demonstrated that the right to marry is an expansive liberty interest that may stretch to accommodate changing societal norms.”

If the U.S. Supreme Court later addresses these issues and agrees that “the new marriage” is a fundamental right, then it must adopt an approach called “strict scrutiny.” The “strict scrutiny” approach would force states to show that their reasons for its restrictive marriage laws do not just have a rational basis, but are “compelling.” This would put a very heavy evidentiary burden on individual states to justify their traditional marriage stance, which they may not be able to meet.

The Supreme Court, by refusing to hear these cases, casts a shadow of uncertainty over two of the central institutions of organized society—marriage and family. The court’s refusal appears to favor judicial over legislative power and the court’s silence threatens American federalism which recognizes that state governments retain powers to act which cannot be usurped by federal courts or Congress.

The Supreme Court should end this silence and hear petitions requesting certiorari.