Milwaukee Journal Sentinel Editorial Board | We'd still prefer a clear affirmative ruling from the U.S. Supreme Court that same-sex marriage bans are unconstitutional across the country, but Monday's decision is still a historic moment in affirming the rights of all Americans to enjoy the benefits of marriage.
The court Monday rejected without comment appeals from five states, including Wisconsin, of lower federal court rulings that had struck down those states' bans against same-sex marriage. That means gay marriage is legal again in Wisconsin, and perhaps as many as 30 other states, and the marriages performed earlier this year will stand. It also means the state will cease its stand in favor of discrimination.
"Today's action by the U.S. Supreme Court allows (same-sex unions) to take effect," said Dana Brueck, a spokeswoman for Attorney General J.B. Van Hollen, who had fought to uphold the state's constitutional ban on such marriages. "The department, having made every effort to fulfill its duty to defend the state constitution, will now work with its state agency clients to implement the order."
And Gov. Scott Walker had this to say about the issue: "For us, it's over in Wisconsin."
Larry Dupuis, legal director of the American Civil Liberties Union of Wisconsin, hailed the decision in an email to the Journal Sentinel. The ACLU brought the case on behalf of eight same-sex couples in the state.
"Wow. I think I'll be attending some weddings of some very, very happy couples soon," Dupuis said.
The state's position was untenable and discriminatory, just as bans against interracial marriage were half a century ago. Yes, a majority of Wisconsin voters approved the constitutional ban in 2006, but this was not in the end a question of majority rule, although it should be noted that popular opinion has made a dramatic swing in favor of same-sex marriage in the intervening years. And that swing may have had some influence on the court rulings.
In the end, this was a simple matter of fairness. Federal appeals court Judge Richard Posner wrote in his 40-page decision that "a degree of arbitrariness is inherent in government regulation, but when there is no justification for government's treating a traditionally discriminated against group significantly worse than the dominant group in the society, doing so denies equal protection of the laws."
He also noted that the legal argument presented to support the bans was so full of holes that it cannot be taken seriously.
By rejecting Wisconsin's appeal of Posner's decision, it appears that the U.S. Supreme Court agrees.
"I'm blown away by this," James Esseks, a lawyer who heads the American Civil Liberties Union's legal efforts concerning gay marriage, told The Washington Post. "It is a watershed moment for the entire country."
The move surprised more people than Esseks. Even though no appeals court had ruled that state prohibitions were constitutional — and such disagreements between federal circuit courts usually are precursors to Supreme Court review — most thought the court would not let such a significant change happen without their input, The Post reported.
But Esseks argued to The Post that Monday's action indicates that it doesn't matter whether an appeals court now rules that state prohibitions are constitutional.
"If that happened, the court will clearly take the case and decide the issue," Esseks said. "But (Monday's decision) is more than a hint about what the court will do."
The issue may not be completely resolved. Theoretically, the court still could accept another appeal and rule against same-sex marriage. But that would only create confusion, as University of Richmond law professor Carl Tobias noted.
"The Supreme Court does not want to look stupid or foolish. So why would they do that?" Tobias asked. "My sense is this is resolved. They know where they want to go."
And where they apparently want to go is in the direction of fairness and equality for all Americans.