The wheels of justice grind slowly – except when they don’t.
Consider the fate of same-sex marriage in Kansas over last two months.
In Kansas, as in many states, challenges to same-sex marriage bans are wending their way through the courts. Most court-watchers expected that the Supreme Court would take up the issue, and the Kansas litigants were among them.
But on October 6, the Court decided not to do so, observing that lower court opinions were almost unanimously striking down such bans. The cases the Court chose not to review included one from the Tenth Circuit, which includes Kansas.
Four days later, on October 10, the Kansas Supreme Court said it would consider what this all meant. Was Kansas’s ban now unconstitutional, with the Tenth Circuit decision now left standing? In the meantime – and here’s the catch – the Kansas Supreme Court left things as they are: no marriage licenses for gay couples, while the review takes place.
Four hours later, the ACLU, litigating the case for two lesbian couples, filed a case in federal court, and later added that the Kansas court’s stay was improper.
On November 4, the district court agreed. The way things stood, there was really no chance that Kansas’s marriage ban would survive, and (sparing some of the legal details) there was no other compelling reason to delay issuing marriage licenses, as had already happened in many other states. Justice delayed is justice denied, after all.
On review, the Tenth Circuit court of appeals agreed too.
But then everything changed. On November 6, the Sixth Circuit’s long-winded decision in DeBoer v. Snyder held, for about a dozen different reasons, that state same-sex marriage bans were not unconstitutional. Now, unlike two days earlier, there was a circuit court split on the issue, and a strong likelihood that the Supreme Court would decide it after all.
So, on November 10 – still with me? – the Kansas attorney general appealed to the Supreme Court. Now things have changed, Kansas said. Now you’re going to have to take up this issue.
And on November 11, the day that Kansas clerks were supposed to start certifying same-sex marriages, Justice Sonia Sotomayor – responsible for reviews of this kind coming from the Tenth Circuit – stayed the order. Put away the champagne, friends of Dorothy – you’re still in Kansas for now.
As is typical in such cases, Justice Sotomayor’s one-line order gives no reasons for its decision. It is, after all, only reviewing a decline of a stay of an injunction to stop withholding licenses. And it is only a temporary (though indefinite) order, requesting a response from the ACLU. This is hardly the “setback for gay marriage” that some enthusiastic headline-writers have proclaimed.
It’s not even clear that the ACLU will disagree. With the Sixth Circuit decision now the law of (part of ) the land, there is a legitimate difference of judicial opinion on this question. Strategically, it may make sense for LGBT advocates to nip this chaos in the bud and ask the Supreme Court to take up the issue now.
Or, in keeping with its recent judicial minimalism, the Court could decide to keep the stay in place without taking up the state marriage ban question directly. As the Kansas appeal emphasizes, procedural legal principles generally require federal courts to wait until after state courts have ruled on issues of state law. The Court could tell the district court simply to wait.
Underlying all of this legal maneuvering is the social fact that marriages are hard to undo. It’s happened before, of course; same-sex marriages in New York and California were retroactively de-legitimized. But it’s not only bad optics – it’s bad policy. Suppose a Kansas gay couple gets married tomorrow, makes binding financial life decisions, and then finds next week that they’re not married after all. This is exactly the kind of legal chaos that stays are meant to avoid.
I think gay marriage advocates know this. These marriages are “facts on the ground,” to borrow a phrase from the conflict in the Middle East. They can be unmade by judicial fiat, but it feels awfully cruel to do so. There is something irrevocable-feeling about couples tying the knot on the steps of the county courthouse.
And if there is anything the blizzard of dates and lawsuits indicates, it’s that this large-scale social evolution is now moving extremely fast. A temporary stay in Kansas would slow the process down, but a slowdown isn’t a setback, especially when the pace has been so frenetic.
On the contrary, if the Court now decides to hear this case on the merits, it might be a fast-track.