On behalf of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Tuesday, October 7, 2014.
Yesterday, the U.S. Supreme Court refused to review seven cases invalidating anti-same-sex marriage divorce. There is now a high probability the Supreme Court will invalidate these laws.
Given the pace in which same-sex marriage laws have been changing, I’ve been writing about this often. According to some, all seven cases involved lower courts which struck down state laws, so there was no circuit split, meaning no reason to take on the case.
Around 30-states have legal same-sex marriages, many same-sex couples in those states will have gotten married in the meantime. That will make it harder for the Supreme Court to declare of thousands of new marriages null.
Also, public support for same-sex marriage is growing steadily. A Supreme Court decision, when it occurs, will occur in a country that is more favorable to same-sex marriage than it is ow. This could affect swing votes like Justice Anthony Kennedy, who might be willing to hold that the Constitution guarantees a right to same-sex marriage, but may still be conflicted.
If justices Ruth Bader Ginsburg and Stephen Breyer were replaced with conservative justices, that might create an anti-gay marriage majority on the Court, but Ginsburg and Breyer might stay on long enough to decide the gay marriage issue.
We may get a Supreme Court decision striking down laws banning same-sex marriage in the next few years. That is because laws banning gay marriage discriminate on the basis of sex, they violate the fundamental right to marriage, and have been found to fail even the lowest level of judicial scrutiny, rational basis.
In addition to the growing number of victories in the circuit and district courts, and in state courts around the country, we are growing more confident that anti-same sex marriage laws are headed for the dust bin of history. When we don’t know.
More can be read at The Volokh Conspiracy here.