I wrote a year ago, “Let the new discrimination cases begin!” Well he was right although he was by no means clairvoyant. Yes, a title wave of chases were ruled upon. However, these were not new cases. These cases were already in the pipeline and the dissenting justice knew them in detail. All the justices knew about these other cases when they ruled on DOMA a year ago which is why so many were hopeful that a full constitutional ruling on same sex marriage bans would have been made at the time instead of the narrow DOMA and California Prop 8 rulings that were made.
So why did the Supreme Court make a mess creating an avalanche of confusion this time around by refusing to hear nine different cases everybody was sure were going to be heard by the Supreme Court? Were the Justices being scholarly and all judge like? Did the justices lack the stomach or political will by not picking a case to make a ruling that settle things once and for all? I sure thought the latter was an accurate picture to paint.
After some thought, it is more like the justices were deferring to already settled opinions for which the Supreme Court could not muster five justices to overturn some 39 federal judges. Justices resolve conflicts in these types of constitutional cases. There wasn’t even an hint of conflict.
These 39 federal judges (and counting) had already done the work for the Supreme Court. They weighed the arguments and repeatedly came to a single conclusion. The states have yet to present a cohesive, defendable, logical, reasonable and justifiable cause to discriminate. States where thereby inflicting constitutional harms to same sex couples without cause and due process. Few, if any, constitutional topics have been argued in front of so many judges, which resulted in the exact same result. The ban on same sex marriage is discrimination and the states have not produced any creditable evidence that a ban is anything more purposeful than discrimination.
How could so many judges get it wrong especially considering no topic has been argued more than this one? How can the Supreme Court overrule so many different courts and judges without bringing the entire judicial process to the brink of disaster by way of no confidence? They didn’t and the Supreme Court can’t. They did their jobs as it was meant to be done.
I suspect the justices knew exactly how this was going to play out. After all, it had been barely 15 months since the DOMA ruling. This is just a brief movement in judicial timescales. Hardly a lunch break between rulings.
The problem is that two different district courts have yet to rule. One district is on its way to make a ruling. Nebraska is in the other. Nebraska’s first case was rejected years ago. Its latest case was thrown out on technicalities. It will be many years before another case can be heard. Under the current chaos, Nebraska may well be one of the last three states that will permit same sex marriages. This is not unusual though. Nebraska was the last state to make it legal to speak German and even then it took the Supreme Court to final step in and say something.