In sports, a “streak” can say a lot about talent, endurance — and plain luck. Cal Ripken, Jr., of the Baltimore Orioles set a major league baseball record by playing in 2,632 consecutive games. The University of Connecticut’s women’s basketball team owns the longest string of victories in the college basketball ranks — ninety games in a row.
In law, attorney Thurgood Marshall had a string of victories (sometimes interrupted by defeats) in his campaign to achieve racial desegregation in public education, and attorney Ruth Bader Ginsburg did much the same in advancing the women’s rights revolution. But perhaps nothing in constitutional history matches the swiftly developing “streak” of court rulings in favor of same-sex marriage. Still, the actual meaning of that “streak” is open to debate — even about whether it is a streak. Let’s try to sort it out,.
First, what are we talking about here? Courts have been issuing decisions about the government’s power to ban same-sex marriage since 1993, in a Hawaii case, but that didn’t actually work out to permit such marriages. In fact, that ruling, favorable to the idea, produced just the opposite effect: a swift and long-running backlash, a wave of federal and state laws and state constitutional amendments reinforcing long-standing opposition to gays and lesbians seeking to wed.
If one views the streak starting with a ruling by the highest state court in Massachusetts in 2003, a decision that did actually open marriage to same-sex couples (the first such ruling with a definite effect), there has been a steady trend strongly in that direction, but it has not been continuous.
What most people have been talking about lately has been a line of court decisions that have come down over the past thirteen or more months. The starting point in that cycle was the Supreme Court’s decision in United States v. Windsor, in late June of last year.
In that ruling, the Court struck down a key part of a 1996 federal law, the Defense of Marriage Act — one of the laws that had been prompted by the Hawaii court decision three years before. The Court nullified a provision in the law that allowed federal marital benefits to go only to opposite-sex couples. Those benefits, the Court majority said, must be available to same-sex couples who were legally married under their own state laws, for example, in Massachusetts, or other states that had since chosen to allow such unions.
The Windsor decision, however, actually decided nothing about whether states could do what the federal law had done; that is, limit marriage to opposite-sex couples. Even so, the opinion did say many favorable things about the need to show respect for the families of same-sex married couples.
In the wake of that decision, a “streak” supposedly has developed, with court after court, at federal and state levels, declaring that the Windsor decision undermined state bans on same-sex marriage and struck those bans down.
In most public discussion, it has been said — on this blog, too — that there had been an unbroken string of court victories for same-sex marriage. But this week, a state judge in Tennessee appeared to have broken that string by upholding his state’s ban in a same-sex couple’s divorce case.
The reality, which has just become clear, is that the “streak” never really got started as a string of winning decisions for same-sex marriage. The first court ruling to apply the Windsor decision came in a New Jersey trial court in September 2013, nullifying a state ban, but that was mainly an expansion of an earlier, pre-Windsor ruling by the state’s Supreme Court. The first court ruling to start from scratch on the issue went the other way; a state judge in Mississippi, in a same-sex divorce case, on Dec. 6 dismissed a constitutional challenge to the state’s ban. It was only a two-page order, so no one could be sure what reasons the judge had.
The string of victories that came after the Windsor decision started on Dec. 19, with a ruling by the New Mexico Supreme Court. It is important to note though that the decision relied on the New Mexico constitution to nullify the state’s ban.
Then, one by one, federal and state courts began applying the Windsor decision directly to strike down state bans under the federal Constitution. (Even that string was interrupted in May, when a state judge in Tampa dismissed a same-sex marriage divorce case, seeking to challenge that state’s ban. Later, four state judges in other courts in Florida would rule in favor of same-sex marriage.)
But, even if the “streak” has not been an unbroken one, the pace and frequency of the decisions that did go against the state bans is, surely, unprecedented. Although groups that have been closely monitoring the string of rulings disagree on the actual number of victories for same-sex marriage, they agree it is about thirty, or more.
What the occasional breaks in the “streak” illustrate, though, is that the outcome is not necessarily predictable, as other courts take on the question, and an ultimate Supreme Court decision in favor of same-sex marriage is hardly inevitable.
But then does the “streak,” such as it is, have any real meaning? It certainly does. As the number of rulings won by same-sex couples has risen, judges later joining in the trend have relied upon the strength of that trend. Each judge is obliged to decide the issue individually, but most of them recognize a consensus when they see one as vivid as this one has been.
Moreover, the strength of the trend has also led attorney generals in several states to decide that a defense of their state’s ban is no longer a promising strategy, and they have given up that defense. Others in favor of the bans have tried to step up to make a defense, but that has had its limits.
The “streak” also has created a lower-court record that, even if it does not produce the same result each time, will surely impress the Supreme Court when it finally allows itself to be drawn into the fray. Some historians have said that they know of no instance when the Court has bucked a trend such as this one has become.
But the very nature of that trend can also be an argument against the Supreme Court choosing to get involved itself. If the only breaks in the “streak” have been a handful of rulings by divorce-court judges, none of whom so far has gone deeply into the issue before the ruling, the Court could conclude that the issue is working itself out sufficiently in lower courts.
The Court is often led to take on a controversy if the lower courts have split, at least when such splits are vivid and meaningful. The supporters of bans on same-sex marriage have been arguing that there is already a split of significance on this issue, despite the “streak.” They are relying on the fact that the U.S. Court of Appeals for the Eighth Circuit in 2006 explicitly upheld Nebraska’s ban on such marriages, and they also cite a string of state supreme court decisions against same-sex marriage pleas.
Every one of those decisions, though, came out before the Supreme Court decision in the Windsor case. If that ruling changed the constitutional landscape, as so many judges have since concluded, the Supreme Court could conclude that a current split would provide a more compelling reason to take on the question.
A number of observers who listened to hearings held last week in the U.S. Court of Appeals for the Sixth Circuit came away with the clear impression that a majority of the people in the three-judge panel might well uphold one or more of the state bans in effect in the four states involved in the hearing.
That kind of a break in the current “streak” would certainly demonstrate that there is a real division of opinion on the question, one that it would take a Supreme Court decision to resolve.
Of course, the existence of a genuine split on a major constitutional question such as this one does not necessarily dictate that the Court will be drawn in. The Justices do not agree to settle every lower-court conflict, by any means. They have almost complete discretion in what decision to put on their docket.
One thing about the “streak” does appear to be quite clear at the moment. Its pace has been such that the Supreme Court is likely to act on one or more cases soon after it returns to Washington in September, ending its summer recess. Any grant of review early in the Term would almost certainly mean a final decision by next summer.
If that were to happen, it would be a remarkable historic journey, from Windsor to a definitive ruling on same-sex marriage in just two years’ time.
Reprinted with permission from SCOTUSblog.com.