The Supreme Court’s decision Monday to decline the appeals of decisions striking down same-sex marriage bans in five states was, to most court-watchers, a huge surprise. It was also a deeply strange move given the magnitude of the constitutional issue and the general confusion about what a non-decision actually means. While Monday’s denial of certiorari was not technically a decision on the merits, most supporters of same-sex marriage celebrated the move as part of the justices’ inexorable crawl toward marriage equality. And in Virginia, Oklahoma, Colorado, and other affected states, gay couples who have waited—in many cases for years—queued up to get licenses to marry their partners. Not all of them succeeded.
Only two days later, there was another surprise. Justice Anthony Kennedy issued a one-paragraph emergency stay Wednesday on the 9th Circuit Court of Appeal’s ruling that same-sex marriage bans in California, Idaho, and Nevada are unconstitutional. Yet more confusion ensued. Did this apply just to Idaho, which had sought the stay? Or did it sweep in Nevada too, as the order implied? A few hours later a follow-up order “upon further consideration” from Kennedy brought the stay back just to Idaho. Including Nevada, we were told this morning, was a mistake. Never mind. And so gay marriages could once again be cleared for landing in Las Vegas.
What does this latest step mean? Who on Earth knows? The most sophisticated legal minds in America are poring over every word in the emergency stay and the Idaho petition for clues. Maybe it’s merely a procedural step to give the state time to file its brief. Maybe it’s an attempt to show respect for the state by considering its appeal before denying it, as the court did with the five states’ appeals denied at the beginning of the week. Maybe it’s due to a difference between the 9th Circuit’s and the other appellate courts’ view on the correct standard to apply. (Idaho cheerfully admits in its brief that it is discriminating on the basis of gender, not sexual orientation, with its marriage ban.) Or maybe it's a sign that the Supreme Court is still looking for the right case with the right set of facts to decide the issue once and for all. But we do know one thing the Idaho stay is not, which is an answer to the question everyone is asking: Is same sex marriage a constitutional right or isn’t it? And how are the states and lower court judges supposed to figure that out?
This week’s legal zigs and zags afford very little consolation to people like Amber Beierle and her partner, Rachael Robertson, who were “just a few feet away from the clerk” on their way to getting their Idaho marriage license when Justice Kennedy’s minimalist order was handed over. They, of course, don’t know what the stay order means. All they know is that if you are lucky enough to live in Virginia you could get married starting this week (at least for now). And if you are unlucky enough to live in Idaho you have will to wait a little longer (we think). And if you are super-unlucky enough to live in Texas, well too bad. Apparently the 14th Amendment works only for the geographically fortunate this week.
Consider, as well, the hot mess that is Kansas. The state is presumably under the jurisdiction of the 10th Circuit, which also covers Utah, whose appeal was batted away by the Supreme Court on Monday. The 10th Circuit ruling that same-sex marriage bans are unconstitutional should therefore be the law in Kansas. Moreover, state law provides that a clerk who issues a license to “unqualified” people could be found guilty of a misdemeanor. So on Wednesday, Chief District Judge Kevin Moriarty of Johnson County issued an order directing the district court clerk to issue licenses to same-sex couples without fear of prosecution, reasoning that state laws—statutory or constitutional—are void if they contradict federal law, and that after Monday Kansas is bound by the 10th Circuit decision. But other judges in the same county disagree. And a judge in a different county has already denied a couple seeking a license because, in her view, Kansas’ ban on same sex marriage has not been explicitly struck down.
Meanwhile, Kansas Attorney General Derek Schmidt and Gov. Sam Brownback declined to accept the Johnson County ruling. Brownback issued a statement Wednesday night indicating that “An overwhelming majority of Kansas voters amended the constitution to include a definition of marriage as one man and one woman.” The statement asserted, “Activist judges should not overrule the people of Kansas.” Is Judge Moriarty an “activist Judge”? Or is he merely aware of the existence of the Supremacy Clause? Who knows?
Over in South Carolina? Same deal. Depending on which courthouse you visit, you can procure either a marriage license or a refusal.
The Supreme Court has recognized that constitutional chaos can itself be harmful. In their plurality opinion in Casey v. Planned Parenthood, for example, Justices Kennedy, O’Connor, and Souter stated the problem this way: “Liberty knows no refuge in the jurisprudence of doubt.”
You may, for example, remember the 2011 case of a man named Troy Davis, who was executed in Georgia for a crime many believed he did not commit. We may never know if a horrific injustice occurred when that death penalty was carried out. But we do know that the Supreme Court committed a different kind of injustice that night by failing to act, or to communicate in any way, on Davis’ final appeal for more than three hours after the scheduled execution time. As the minutes ticked by, Davis and his family waited without a single word from the justices, as did the family of Mark A. MacPhail Sr., the police officer whom Davis was convicted of killing. Decisions were being made at the court, votes counted, and petitions denied. And what the public, the lower court judges, the parties, and the rest of us heard was silence, until the brief order came and the execution proceeded.
The issue of same-sex marriage does not involve questions of who lives or dies, but it does involve issues of birth and death. The court is still inflicting a different kind of injustice this week, particularly upon the thousands of citizens whose relationships and families remain in a perpetual state of uncertainty. There is harm in waiting. That is why the cliché that justice delayed is justice denied is more than just a cliché. For couples who are lining up to complete their families in the eyes of the law, being told that you may be eligible, or you may not, or that you should travel to the next county, or the next state, or come back in a few years when the issue is settled, or in a few days when a different judge, or clerk is the decision-maker is surely justice denied. The situation as it has unfolded in Idaho, and Kansas, and the states covered by the 5th and 6th Circuits is a continuing harm and a real harm: the harm of being treated as less than equal by one’s own state.
But delay isn’t the only cost to the court’s latest antics. There’s also the sense—real or perceived—that they are needlessly sowing confusion. The justices had to have known full well what the practical realities of their decisions on Monday would be. They had to have known that thousands of couples in Indiana, Oklahoma, Utah, Virginia, and Wisconsin (and, more cautiously, in North Carolina, South Carolina, and other states) would rush out to make their unions legal. They saw the celebrations following their decision in Hollingsworth v. Perry, which was decided on standing grounds and not on the substantive issue. They had to know what this would mean to people. And they must have realized that Americans in states with politicians who support marriage equality might make different choices than those in Kansas.
The Supreme Court needs a certain amount of confidentiality to do its work. Nobody is asking that the justices tweet out their every thought or vote count. But the very purpose of that veil of secrecy is to afford the court finality and legitimacy in the eyes of the public. And when the court offers neither finality nor coherence, it starts to look like the secrecy has become a value for its own sake. The quest for recognition of constitutional rights is not a game or a television mystery. If we wanted to look for clues and be thrilled by twists and turns, we could all go see Gone Girl.
The court is surely torn and conflicted over marriage equality, just as the country is. And we will not necessarily benefit from another round of sharp, personal attacks in opinions written in the heat of the moment. But the need for decorous silence and careful deliberation is not an excuse for what looks like indifference to the pain being inflicted on both supporters and opponents of same-sex marriage, and on local officials forced to administer justice by way of a Magic 8 Ball.
Justice Kennedy was one of the justices who wrote that “liberty knows no refuge in the jurisprudence of doubt.” This week’s events have afforded liberty to only some Americans, and doubt to us all.