Reasons to Be Optimistic for Marriage Equality at SCOTUS

As noted earlier in the week, Clarence Thomas and Antonin Scalia, the Supreme Court's most vociferous homophobes, whined when the Court refused to extend the stay that had put same sex marriages on hold.  Meanwhile, an editorial in the Mobile Press Register similarly whines and shows that the column's author is an idiot given his lack of understanding of what the issues were before the Court in Windsor (only Sec. 3 of DOMA was under challenge).  Candidly, the Court's action makes perfect sense given its past refusals to take appeals from Court of Appeals rulings that struck down state marriage bans. And, as a column in The Advocate lays out, this week's action may signal how the Court will rule come June.  Here are excerpts:

It's impossible to predict exactly how the Supreme Court will rule on the marriage equality cases currently before it, but it's getting easier and easier to make a confident guess. Just ask Clarence Thomas.

Earlier this week, the court denied a request for a stay in Alabama, and Justice Clarence Thomas's dissent telegraphed a few key signals about the court's momentum toward equality. In addition, several recent court decisions all seem to indicate that the court already has a consensus that state bans on same-sex marriage are unconstitutional.


Here are the key reasons Thomas lays out for why the court is unwilling to delay marriage equality, even though Thomas opposes that conclusion:

1. Weak Case from Antigay States . . . . Thomas indicates the other justices seem confident that Alabama would not be able to show that marriages would cause any harm.

2. Court's Approach Has Evolved . . . . the court has turned down stay requests, allowing marriage to begin immediately in several states. Cases that saw stays denied by the high court include the Florida case, Armstrong v. Brenner; the South Carolina case Wilson v. Condon; and the Kansas case Moser v. Marie.


3. Court Declined to Hear Cases in Which Bans Were Overturned. . . . Although it's only briefly mentioned in the dissent, the Supreme Court's refusal to hear pro-equality rulings is also worthy of note. Late in 2014, several states sent marriage cases to the Supreme Court, with the expectation that the justices would hear the cases. But the justices declined, effectively affirming the pro-equality rulings from lower courts. . . . . In his dissent, Thomas notes that he would have wanted to review the pro-equality rulings, but was unable to muster enough support from his colleagues.
 
4. ...But Accepted Cases in Which Bans Were Upheld.  In fact, the Supreme Court only accepted subsequent marriage equality petitions after a lower court upheld marriage bans, creating what is known as a "circuit split." . . . .  Clearly, that means that something has changed in the several months between the court's granting of the Utah stay and denying a stay in Alabama. It's impossible to say what happened, but it seems that a consensus may have emerged at the court behind the scenes, that a pro-equality ruling is inevitable.

5. Marriage Equality Is Becoming the Status Quo. Usually the Supreme Court defers to status quo, upholding existing laws until they are fully reviewed. Going slow, maintaining consistency, and avoiding rapid changes in the law are high priorities for the court. The fact that the court allowed marriage to begin in Alabama, as well as several other states, could mean that the justices expect marriage equality to be the new status quo. . . . Advocates who want to see the freedom to marry secured nationwide certainly hope Thomas's prediction is correct.

Ultimately Thomas seems as though he's readying to concede defeat.