This morning the Supreme Court turned aside Alabama’s request to stay an order requiring the state to grant same sex couples marriage licenses. Alabama wanted the injunction issued as the Court considers the merits of the constitutional issues in a group of Sixth Circuit cases the Court has already agreed to hear. The result is that same sex marriage will come to yet another state (are we up to 37) and any eventual Supreme Court rejection of a constitutional right to same sex marriage seems even less likely, given the many new legal relationships recognized by the states and the changing of expectations and realities in the states.
Justice Thomas, joined by Justice Scalia, dissented from today’s order, which is no surprise given the recent similar dissents the two have issued. Some of the basis for the dissent raises some inside baseball issues at the Supreme Court. For example, there is a dispute over whether a state necessarily suffers irreparable harm whenever its laws are put on hold by a federal court on constitutional grounds. Once again, the Supreme Court majority remained silent, leaving us to guess at the Court’s reasoning and rationale. The Supreme Court’s shadow docket and secret decisionmaking grows ever more important and harder to defend. (I’ve written about this in the context of emergency voting cases.)
What struck me about today’s dissent was Justice Thomas’s recognition that these stay orders signal what is likely coming on the merits: a constitutional right to same sex marriage. (I think at this point the only question is the vote: I can see 5-4, 6-3 (with Roberts joining Kennedy and the liberals) or perhaps, though least likely 7-2 (with Alito coming too).) The tone was one of resignation of what is coming and a lament about the loss of the power of the states. Here is some language from Justice Thomas’s dissent (my emphasis):
It was thus no surprise when we granted a stay in similar circumstances a little over a year ago. See Herbert v. Kitchen, supra. Nor was it a surprise when we granted a stay in similar circumstances less than six months ago. McQuigg v. Bostic, 573 U. S. ___ (2014). Those decisions reflected the appropriate respect we owe to States as sovereigns and to the people of those States who approved those laws. This application should have been treated no differently. That the Court more recently denied several stay applications in this context is of no moment. Those denials followed this Court’s decision in October not to review seven petitions seeking further review of lower court judgments invalidating state marriage laws. Although I disagreed with the decisions to deny those applications, Armstrong v. Brenner, ante, p. ___; Wilson v. Condon, ante, p. ___; Moser v. Marie, ante, p. ___, I acknowledge that there was at least an argument that the October decision justified an inference that the Court would be less likely to grant a writ of certiorari to consider subsequent petitions. That argument is no longer credible. The Court has now granted a writ of certiorari to review these important issues and will do so by the end of the Term. The Attorney General of Alabama is thus in an even better position than the applicant to whom we granted a stay in Herbert v. Kitchen. Yet rather than treat like applicants alike, the Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor, 570 U. S. ___ (2013) (slip op., at 25–26). This acquiescence may well be seen as a signal of the Court’s intended resolution of that question. This is not the proper way to discharge our Article III responsibilities. And, it is indecorous for this Court to pretend that it is. Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States. Over the past few months, the Court has repeatedly denied stays of lower court judgments enjoining the enforcement of state laws on questionable constitutional grounds. See, e.g., Maricopa County v. Lopez-Valenzuela, 574 U. S. ___, ___ (2014) (slip op., at 2) (THOMAS, J., joined by SCALIA, J., respecting denial of application for stay) (collecting cases). It has similarly declined to grant certiorari to review such judgments without any regard for the people who approved those laws in popular referendums or elected the representatives who voted for them. In this case, the Court refuses even to grant a temporary stay when it will resolve the issue at hand in several months. I respectfully dissent from the denial of this application. I would have shown the people of Alabama the respect they deserve and preserved the status quo while the Court resolves this important constitutional question