Ari Ezra Waldman Hub

Why Each SCOTUS Justice Might Be Avoiding the Marriage Equality Question Right Now


The media have been universally shocked at the Supreme Court's announcement today. Now that we have had time to read several media accounts (including our own Towleroad coverage) we should take a step back and analyze what this means from a legal, political, and practical perspective. I also would like to shed a little more light on how this may have happened and what conclusions, if any, we can draw from it.

ScotusLet's be clear on what did not happen. The Supreme Court did not make a substantive ruling on the constitutionality of banning gays from marrying. Nor did the Court make any ruling on the justice of marriage equality. The constitutional question lives on for another day.

The Court's denial of the petitions also has no explicit legal effect on anything other than those particular 7 cases for which it denied review and on the circuit court decisions below. It has, in the legal jargon, no precedential value: it does not compel any other court to make a certain decision in a certain way. 

But it does represent the federal courts' final word on these cases. There are no more avenues of appeal for the anti-equality forces in Wisconsin, Indiana, Utah, Oklahoma, and Virginia, as well as in the other 11 remaining states covered by the Fourth, Seventh, and Tenth Circuits that do not already have marriage equality. That means that loving, committed gay couples can start marrying in those states very soon. Thanks to Virginia Attorney General Mark Herring, "soon" is now. Other states, especially those run by conservative, anti-gay governors, may try to defy the inevitable for as long as they can. But sooner rather than later, clerks from South Carolina to Wisconsin will be issuing marriage licenses to gay couples. They will be strengthening the institution of marriage in their states and throughout the country.

Many are wondering how this could have happened. Some commentators expected (more likely, hoped) that the Court would take at least one of these cases. Some expected the Court to do nothing. Back in June, I argued that there may never be a need for the Supreme Court to take a marriage equality case. I was alone in arguing that then, and there are now several commentators coming around to realize that possibility. The denials today only reinforce my point.

Follow me for one possible explanation for how and why this happened.


Continue reading "Why Each SCOTUS Justice Might Be Avoiding the Marriage Equality Question Right Now" »

Supreme Court Denial Opens Door to Marriage Equality in 11 More States: An Analysis



Today we received word that the Supreme Court denied review of all seven marriage equality that were pending before it. These cases came out of the Fourth, Seventh, and Tenth Circuits. This means that the Supreme Court has made its move, the appellate courts' pro-equality decisions will stand, the stays will be lifted (shortly), and marriages can begin shortly thereafter. 

Consider the magnitude of this win.

The Fourth Circuit includes Maryland, West Virginia, Virginia, North Carolina, and South Carolina. The Seventh Circuit includes Indiana, Illinois, and Wisconsin. The Tenth Circuit covers Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah. Those jurisdictions cover nearly 74 million people. Taking away those states that already have marriage equality--Maryland, Illinois, and New Mexico--and we will soon have more than 52 million more Americans living in marriage equality states.

It also will ultimately bring 11 more states to the marriage equality fold. That will likely happen in two stages. First, the five states that were defendants in the cases the Supreme Court just denied will almost immediately have to allow gay couples to marry. Then, because the appellate court decisions cover the other states, as well, all the remaining the states will have to do the same in short order. This brings our marriage equality tally to 30 states plus the District of Columbia. Three-fifths of the states will now be marriage equality states just like that!

In addition to the very real, practical effect of allowing tens of thousands of gay couples to marry, the surprising denial may mean several other things:

First, the Supreme Court is making a strong, though of course not definitive statement, about where it is heading. To deny all seven cases and let the pro-equality appellate court decisions stand speaks to the court's willingness to see marriage equality come to more states. If a majority was opposed to that, at least four justices would have voted to take the case to try to prevent that from happening.

GinsburgSecond, taking today's actions together with Justice Ginsburg's recent statements that the Supreme Court will take a marriage equality case "soon" and to look to the Sixth Circuit, it seems as if the Court is respecting the traditional canon of not taking a case before it has to. We have, to date, run the table on marriage equality in the federal appellate courts, so there is no circuit split (an old Eighth Circuit case from before Windsor does not count). 

Third, if I wanted to be a little cheeky, I would say the Court is almost daring the conservatives on the Sixth Circuit to uphold the ban on gays marrying. "We dare you to send us a bigoted decision saying gays cannot marry. We just allowed 11 more states to let gays marry. Marriage equality is almost literally surrounding the Sixth Circuit. We dare you! Watch how fast we reject you."

So, what happens now?

Because the Supreme Court has denied review in all marriage equality cases, those cases are over. The appellate court decisions, which upheld district court decisions holding marriage discrimination provisions unconstitutional, stand. Since the cases are over and since the Supreme Court's denial of review is final word on the matter, the stays, whether issued by appellate courts or district courts, will end shortly. Within a few days, gay couples should be allowed to marry in Wisconsin, Indiana, Virginia, Utah, and Oklahoma. For marriage equality to come to the other states under the jurisdiction of the Fourth, Seventh, and Tenth Circuits, an additional step may be needed. Attorneys general or governors in those states could immediately declare that per the Supreme Court's denial and the impending order from the appellate courts, those states' bans are null and void, and that clerks should start issuing marriage licenses as soon as possible. Normally, courts will give states a short leeway time to make the necessary administrative changes to comply. 

Sure, a governor or attorney general could try to nullify the courts' orders, standing in the proverbial schoolhouse door like an anti-gay version of the racist Governor George Wallace. But if a gay couple in, say, South Carolina, goes to a clerk's office and seeks a marriage license in accordance with all other South Carolina marriage law requirements, any clerk's refusal to issue a license on the ground that the individuals are gay would be subject to a lawsuit that would immediately be decided in the couple's favor.

Expect some rhetorical protests, especially from the more recalcitrant and conservative Republican governors, but do not expect their defiant behavior to last very long.


Follow me on Twitter and on Facebook. Check out my website at

Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently pursuing his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

What's Happening at the Supreme Court Right Now



The justices of the Supreme Court are meeting right now to discuss a slew of petitions for hearings. There are seven such petitions on marriage equality cases from Oklahoma, Indiana, Utah, Wisconsin, and Virginia.

Regular Towleroad readers will recall our review of these cases here (discussing the Tenth Circuit decision declaring Utah's ban unconstitutional), here (discussing a similar decision about Virginia's ban at the Fourth Circuit), here (discussing the "Posner treatment" that lawyers for Indiana and Wisconsin got at the Seventh Circuit), and here (discussing the Seventh Circuit decision). 

Even though these cases are "ripe" -- the legal term for "ready" -- for review and even though both sides of all seven cases agree that the Supreme Court should take the case, do not expect the Court to take any of the cases today.

Supreme CourtThere are several reasons the Court may take at least one case:

First, everyone wants it. Freedom to Marry has an ongoing campaign urging the Court to take a marriage equality case and end marriage discrimination nationwide. Anti-gay and pro-equality attorneys filed briefs urging the Court to take their cases, both sides confident they can win. And that does not always happen. Generally, the party that wins in the appellate court is rarely inclined to have a higher court review the decision. Here, many people think it has to happen.

Second, all the decisions are stayed pending Supreme Court review. Every day that passes without a Supreme Court decision is another day in which gay couples face discrimination even though several federal appellate courts have said that the discrimination is unconstitutional, wrong, and must go. The orders stemming from those decisions are on hold pending a final word from the Supreme Court.

Third, these cases pose all the issues. Sometimes, the Court will decline to take a case because the case before it does not raise all the issues or because a quirk at the lower court prevents it from making a complete decision. It happens quite a bit: Imagine a criminal case where an attorney fails to make an objection or a defendant concedes a question of law. If that happens, an appellate court can rarely address those controversies. Here, all issues are in play, including heightened scrutiny.

There are, however, many more reasons why the Court may not take a case just yet.

First, there is no circuit split. Every appellate court to hear a marriage equality case has decided against the ban, declaring them all unconstitutional. Sure, the Seventh Circuit did it in flamboyant, unanimous fashion, but that's just icing. The Supreme Court most often takes cases when there is a disagreement between the circuits. Here there is none. And, a decision at the Eighth Circuit from before the Supreme Court decided Windsor does not count. There has been intervening case law that could impact the decision and, as such, the Eighth Circuit decision does not create a circuit split.

Second, there are several other cases pending. We have cases in the Ninth Circuit and, more importantly, in the Sixth Circuit. The Sixth Circuit hearing, which we discussed here, did not give us obvious clues as to its outcome. One judge seemed inclined to vote against the ban, another judge was in favor of discrimination. A third judge, a George W. Bush appointee and a conservative, is more of a wild card. If the Sixth Circuit goes against marriage equality, that would create a circuit split and would force the Supreme Court to act.

Third, there may be no need for the Supreme Court. If the Sixth Circuit goes with its sister courts -- an eventuality made more likely when someone as conservative and well-respect as Judge Posner eviscerated all anti-equality arguments -- there still will be no circuit split. The Ninth Circuit will decide its cases shortly, and will very likely strike down the bans. A couple of circuits are left, but it is not clear any of them will push the Court to act.

GinsburgFourth, Justice Ginsburg wants to wait. In a talk at the University of Minnesota, the dean of the Court's liberal wing suggested that she was inclined to wait for the Sixth Circuit (and perhaps other circuits) to act. There is no rush, she said. The Court will act when it is necessary.

Waiting might also be a good thing for the marriage equality journey in the long run. The longer we wait, the more federal circuit victories we can rack up, proving to wary conservative justices that the American consensus has emerged. Few -- maybe Justices Scalia and Thomas -- are going to want to stand in the way of that.


Follow me on Twitter and on Facebook. Check out my website at

Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently pursuing his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

Ninth Circuit Panel Eviscerates What's Left of Anti-Equality Arguments: A Summary and Analysis


BerzonA soft-spoken attorney representing Idaho started his state's anti-marriage equality argument by suggesting that allowing gays to marry violates the "bonding right" of children that they will be raised by their biological mothers and fathers. It took Judge Marsha Berzon just 15 seconds to ask her first question: "What is that word you're using before 'right'"? Judge Berzon can hear just fine; it's just that she had never heard anyone make such a ridiculous claim before today. The rest of the hearing followed similarly.

Judge Stephen Reinhardt, a Carter-appointee and liberal leader of the appellate courts, was joined by Judge Berzon, a sharp-minded progressive appointed by President Clinton, and Judge Robert Gould, another Clinton appointee, in a nearly two-hour long interrogation of attorneys from Idaho and Nevada that may not have been as bombastic as Judge Posner's treatment of attorneys from Wisconsin and Indiana in the Seventh Circuit, a hearing which resulted in a marvelous unanimous victory ("Go figure!"), but was every bit as damaging to the forces opposed to marriage equality.

It also brought marriage equality full circle. Judge Reinhardt was the judge that wrote the first decision from a federal appellate court on marriage equality, affirming District Judge Vaughn Walker's pioneering rejection of California's Prop 8. We all know how that case turned out.

And we know what's happened since: a Supreme Court decision in United States v. Windsor striking down the Defense of Marriage Act and a long streak of pro-marriage equality decisions from the lower federal courts, including several appellate courts.

Yesterday's hearing reminded us how far we have really come. Some of the arguments and much of the tone were different this time around. The judges' questioning was direct and they expressed a similar, though less visible, frustration with the misdirection and misleading statements from the anti-equality attorneys as Judge Posner. The tone of the hearing suggested that marriage equality supporters are finally out of the closet, following a tidal wave of an emerging consensus of the legitimacy and morality of marriage freedom for all.

A summary and analysis follows AFTER THE JUMP...

Continue reading "Ninth Circuit Panel Eviscerates What's Left of Anti-Equality Arguments: A Summary and Analysis" »

Posner-ed at the 7th Circuit: Appellate Court Issues First Unanimous Marriage Equality Decision


PosnerIt took 9 days for Judge Richard Posner to write his unanimous opinion striking down the marriage equality bans in Indiana and Wisconsin. And you can see the tone of the decision in one of its more pointed sentences:

Our pair of cases is rich in detail but ultimately straight-forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously.

It wasn't long ago that marriage equality cases were achingly long affairs. Judges would have to pay homage to the deeply held opinions on both sides and recognize that many people vehemently disagree. But to Judge Posner, the cases are straight-forward.

It also wasn't long ago that we were debating whether being gay is an immutable characteristic. Even our progressive allies were not staking out ground on this subject, instead deciding cases without entering the minefield of heightened scrutiny. To Judge Posner, it's a throwaway line.

And it wasn't long ago that conservatives were making the "promiscuous heterosexual" argument to any judge who would listen. To Judge Posner, it doesn't pass the laugh test.

We expected a win at the Seventh Circuit. My colleague and distinguished law professor Dale Carpenter had a similar perspective. But few could have imagined the grand slam Judge Posner penned over the last few days.

A brief summary and analysis follows AFTER THE JUMP...

Continue reading "Posner-ed at the 7th Circuit: Appellate Court Issues First Unanimous Marriage Equality Decision" »

Federal Judge Gets It Wrong, Upholds Marriage Discrimination in Louisiana in Strange, Hateful Opinion


FeldmanLouisiana Federal Judge Martin Feldman, a Reagan appointee, has upheld Louisiana's ban on marriage equality in a haphazard opinion remarkable only for its outdated language and subtly hateful rhetoric. Falling into traps we teach law students to avoid, Judge Feldman finds marriage equality as suspect as fathers marrying their daughters and improperly narrows the scope of the case to seeking a "right to same-sex marriage" rather than just "marriage." He suggests that being gay is a "lifestyle choice" and states that such a "choice" is butting heads with the democratic process, something he seems to think is infallible and beyond reproach.

Judge Feldman gets it wrong. The fight for marriage equality is a fight for marriage, not anything special or different than what opposite-sex couples enjoy. Being gay is not a choice and loving someone of the same sex is not a "lifestyle choice": it is love, it is human nature. And permitting gays to marry does not open the door to incestuous marriages, bestial marriages, or polyamorous unions. That kind of slippery slope argument doesn't pass the laugh test. Countless jurisdictions have made the decision to allow gays to marry, a legal policy decision that has no negative health or cohesion effects on society, without improperly permitting marriages that could be damaging to those involved and to children.

Judge Feldman is not the first judge to uphold a ban. He is not even the first to uphold a ban in the post-Windsor era. He is, however, the first federal judge to uphold the constitutionality of a state ban on marriage equality since Windsor, which complicates marriage's journey through the federal courts. The decision today does not necessarily mean the Supreme Court will have to take one or several marriage equality cases; Judge Feldman could still be overturned by the Fifth Circuit. But it does have several effects:

(1) it makes a circuit split, a key reason the Supreme Court takes cases, more likely;

(2) it provides some measure of legitimacy to anti-equality forces by giving them a victory and resurrecting their outdated and hateful language; and

(3) it denies very real rights to very real families struggling in Louisiana.

I break down some of the more distasteful elements of the decision and provide some context, AFTER THE JUMP...

Continue reading "Federal Judge Gets It Wrong, Upholds Marriage Discrimination in Louisiana in Strange, Hateful Opinion" »


Towleroad - Blogged