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SCOTUS on Ala. Gay Marriage: A Signal of What's to Come?

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By Mark Wilson, Esq. on February 10, 2015 8:13 AM

Same-sex nuptials have taken place in parts of Alabama, after the U.S. Supreme Court voted 7-2 not to stay enforcement of a federal judge's order that the state's gay marriage ban was unconstitutional. The High Court's decision paved the way for same-sex marriages to begin immediately (though some county courts still declined to issue marriage licenses, AL.com reports).

Wait -- I did say "7-2," didn't I? Justice Clarence Thomas, joined by Justice Antonin Scalia, wrote a three-page dissent that Court watchers are saying tips the Court's hand vis-a-vis same sex marriage.

Don't Rock the Boat

Thomas wasn't upset about same-sex marriage itself (though he probably was that, too). In his dissent, he took umbrage with what he considered shabby treatment of states when it comes to federal courts finding state laws unconstitutional. "When courts declare state laws unconstitutional and enjoin state officials from enforcing them, our ordinary practice is to suspend those injunctions from taking effect pending appellate review," Thomas said.

This decision, he said, should have been an easy one. Because the Court took up DeBoer v. Snyder for review later this term, the question of whether it should issue a stay was more than arguable, as the law could possibly change between now and when DeBoer is decided.

Instead, "the Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court's resolution of a constitutional question it left open in United States v. Windsor."

Has the Court Already Made Up Its Mind?

Then came the sentence that had Court-watchers on the edge of their seats: "This acquiescence may well be seen as a signal of the Court's intended resolution of that question." Justice Thomas appeared to signal that the Court has made up its mind -- same-sex marriage should be allowed.

Mark Joseph Stern, editor of Slate's "Outward" blog, agrees. Allowing same-sex marriage in Alabama, in spite of a pending case at the Court, "is not what a court that planned to rule against marriage equality would do," he opined.

Ditto for USA Today's Richard Wolf, who pointed out that, after it declined petitions for cert. from the Fourth, Seventh, and Tenth Circuits last year, the Court intervened only when same-sex marriages were blocked. The justices wouldn't permit another state to allow same-sex marriage, only to take that right away a few months later.

Couple that with Justice Ruth Bader Ginsburg's comments last year that the Court would take up the issue only if a federal circuit court of appeal decided differently, and you have a recipe for a Court that seems willing to let same-sex marriage happen. They appear perfectly happy to let it keep going, and granted the cert. petition from the Sixth Circuit only because it presented a circuit split.

When the justices decide same-sex marriage later this year, they may very well be behind the curve, which turns out to be a good thing for legitimizing a controversial opinion.

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