‘Gay marriage already won’, according to TIME Magazine in April 2013. ‘The Supreme Court hasn’t made up its mind – but America has.’ That Summer the Supreme Court decided in United States v. Windsor that same-sex couples could not be discriminated against under the Defense of Marriage Act. As a result, States were no longer allowed to refuse to recognize same-sex marriages granted under the laws of other states, and same-sex couples were no longer barred from receiving federal tax, social security and healthcare benefits. However, the Supreme Court did not rule on the question of whether a state ban on same-sex marriage breaches the right to equal treatment under the US Constitution.
Lower federal courts have exercised less restraint. Since United States v. Windsor, three federal appeals courts declared state bans on same-sex marriage in five states unconstitutional. Following these judgments, both advocates and opponents asked the Supreme Court to provide clarity. To the surprise of many, the justices decided not to take these cases into consideration in October 2014 – a so-called denial of certiorari.
At that time, an intervention was not strictly necessary because the federal appeals courts were not divided on the issue. The decision not to decide was perhaps also a strategic one. As a result, the judgments of the federal appeals courts remained in force. Without an intervention by the Supreme Court, the right to marry was brought within the reach of same-sex couples in the relevant States, leading to a total of 37 States where such a right was recognized.
But not all federal appeals courts were prepared to cooperate. In November 2014, a 2-1 majority in the federal appeals court of the sixth circuit (Kentucky, Ohio, Michigan and Tennessee) decided that a state ban on same-sex marriage was not in breach of the US Constitution. Judge Sutton, who wrote the majority opinion, invoked Baker v. Nelson. In this 1972 decision, the Supreme Court decided in one sentence that same-sex marriage is not a ‘substantial federal question’. Moreover, Sutton argues that the decision to allow same-sex marriage is not to be made by the court: ‘the people, gay and straight alike, [should] become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way’.
This judgment caused a circuit split and made an intervention by the Supreme Court necessary. Thanks to Sutton cum suis, the heroes from the sixth circuit had to meet each other as adversaries in court once again. The signs were favourable. The Supreme Court refused to delay lower-court orders nullifying state bans on same-sex marriages pending its decision. And while a denial of certiorari formally sets no precedent on the merits, it would have been hard to conceive why the Court did not review previous court of appeals decisions so at odds with its presumably clear guidance in Baker v. Nelson.
On the 26th of June 2015, all eyes were on Justice Anthony Kennedy, the acknowledged centrist of the Supreme Court. Writing for the majority, he found that:
‘No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.’
The minority argued that the majority ‘usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage’. But if there is one thing that is striking about the position of the majority within the Supreme Court, it is patience. The Supreme Court could have taken up the issue much earlier, but it did not. And by the time the Supreme Court had to decide, a majority of the US population was in favour of same-sex marriage and a majority of States had already legalized those marriages. The Supreme Court only had to give the final push. Perhaps the majority of the Justices had already made up their minds, but decided to wait for America.