Justice Thomas seems to think that SCOTUS has all but given up the game on the expected June ruling on same-sex marriage as a result of yesterday’s refusal by the high court to block marriage equality in Alabama.
The Supreme Court on Tuesday denied Alabama’s request to halt legal same-sex marriage in the state until the justices rule on the issue later this year, sparking a scathing dissent by two of the Court’s most conservative members.
The dissent by Thomas, joined by Justice Antonin Scalia, accused the other justices of failing to show “the people of Alabama the respect they deserve” by letting the lower court ruling stand while the case is pending before the Supreme Court. He argued that the order reveals the Court’s intention to rule for same-sex marriage.
“This acquiescence may well be seen as a signal of the Court’s intended resolution of that question,” Thomas wrote. “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,” he added.
The justices decided last month to take the case after the 6th Circuit Court of Appeals upheld gay marriage bans in four states — Michigan, Ohio, Kentucky and Tennessee. The circuit ruling broke with decisions by four other circuit courts to strike down same-sex marriage bans in the states they cover.
“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,” Rick Hasen, a law professor at UC Irvine, wrote. “The tone was one of resignation of what is coming and a lament about the loss of the power of the states.”
Apparently, the dawning realization that this was going to happen all along makes Clarence a sad panda, because expanding civil rights of course requires lament and mourning.
Now, Thomas does have a point that since taking up the Sixth Circuit case in January that SCOTUS could have used the Alabama decision to signal a status quo freeze on the situation until the June ruling and saying that for now no additional states would be added on to the ones where same-sex marriage was allowed.
But the court didn’t do that, and that by itself seems to me to be a massive tell, that the court has found no good reason to stop people from getting married in all but the Sixth Circuit states.
We’ll see. Usual IANAL stuff, but I’m thinking it’s all over except for the joint Scalia/Thomas tears in June.