Yesterday, the federal Supreme Court declined to overturn a federal judge’s decision to strike down Alabama’s ban on same-sex marriage. However, Justice Clarence Thomas’ dissent from this decision may suggest that the Supreme Court is about to issue a historic decision in favor of marriage equality.
In an angry dissent joined by fellow conservative Antonin Scalia, Thomas gave the judge who issued that order, Callie “Ginny” Granade, a tongue-lashing for tossing out Alabama’s ban “without making any effort to preserve the status quo” while the Supreme Court decides on “a constitutional question it left open in United States v. Windsor.” For those of you keeping score, when the Supreme Court effectively neutered the Defense of Marriage Act in 2013, it didn’t address whether there was a constitutional right to marriage equality.
While the court previously denied requests for stays in other cases related to bans on same-sex marriage, Thomas believed it should have granted this stay since the court is all but certain to rule on this larger question at some point in the spring or summer. To his mind, the fact that the court didn’t grant a stay in this case “may well be seen as a signal of the Court’s intended resolution of that question.”
There’s a reason Thomas sounded so outraged in this dissent. He and Scalia are two of three certain votes against marriage equality; the third is Samuel Alito. Plus, if the court didn’t grant the stay, it must have concluded that the harm Alabama might have suffered was outweighed by the harm gay couples would have suffered by not being able to have their marriages legally sanctioned. Unless I’m very wrong, that means that when the court considers the marriage equality question, it will apply its toughest standard of judicial review, strict scrutiny. If that’s the case, the only way that there won’t be at least a 5-4 decision in favor of marriage equality is if Thomas, Scalia, and Alito can somehow convince Anthony Kennedy to throw out his own reasoning in the Windsor opinion. Frankly, I’d be surprised if that happened.
The Supreme Court was thrown into this latest fray when a federal appellate panel reinstated same-sex marriage bans in Kentucky, Michigan, Ohio. However, the judge who wrote that opinion, Jeffrey Sutton, conceded that marriage equality was inevitable. Given the tenor of Thomas’ dissent, we can only hope that Sutton is right and that LGBT people will soon have the freedom to marry. We also have to hope that, at least this once, Thomas is right about something.
