Tuesday, October 07, 2014

A Step Closer to Spouse and Spouse

"Across Virginia, county clerks are readying for an influx of marriage license applications now that same-sex couples in the commonwealth are allowed to marry. The new marriage licenses, which contain spaces for spouse and spouse instead of bride and groom, became available around 1 p.m. Monday." 

The Supreme Court spoke volumes by not taking the appeal on same-sex marriage cases. I had predicted that the Court would decline to hear the appeals.  There are several reasons. All of the Federal Circuit Courts (federal appeals courts)  that have ruled, have ruled that same sex marriage can not be prohibited. The only contrary ruling is in a Federal District Court, that ruling will be appealed to a Circuit Court and as long as Circuit court ruling is in accord with the other circuits, the Supremes can avoid the issue. The Court really does not have an obligation to hear the case, if there is no real disagreement in the Circuits. 

From my point of view, the Chief Justice is trying to keep the Court from being politicized. He can't always do this, but he has done a much better job then most expected. 

It can also be inferred that the Justices didn't see any fundamental flaws in law or logic used in the Circuit Court Decisions. 

I think some of the Justices want to avoid the issue, so they can avoid agreeing with same sex marriage or writing an opinion not easily supported by Constitutional law.  I can just imagine a couple of them writing that the authors of the Constitution had no more intention of equal protection protecting same sex marriage then they did people marrying their pet ducks. Equal Protection, full faith and credit, apply today to a lot of things that the framers could not have imagined. It was un-imaginable when the Constitution was written that you could talk in Philadelphia and be heard in New York, that a machine could could be read around the world instantly, that you could take the heart out of one man and use it to keep another man alive, women voting, women owning property in their own name, a great deal has changed in 225 years. The essence of a common law system, the basis of our Constitutional law system, is that the law is a living thing that changes and grows as society and technology change. 

The Court could have taken the cases if they wanted to.  The underlying reasons used by the Federal Circuit Courts to rule that states can not prohibit same sex marriage, varied slightly, but meaningfully from Circuit to Circuit.  The outcome was all the same, but the reasons were different.   At this point, the reason is not important, unless and until you are using these decisions to try to arrive at a conclusion on another issue. 

If the fight is continued, one state at a time, one circuit at a time, it will take several more years to resolve the issue in all 50 states. Because of jobs, Jay and I are in two federal circuits, Virginia now allows marriage, Kentucky is waiting on a Circuit court ruling. If one of the Federal Circuits rules in a contrary manner, the Supremes are likely to take on the issue of the Century. 


  1. so when do wedding bells ring for you both? soon, I hope!

  2. Anne Marie: Until the 6th circuit rules (hopefully in a good way) it would create a legal quagmire, for example for taxes we would be married for the Feds and Virginia, but not married for Kentucky, and the Kentucky return is based on the federal return. Very frustrating.

  3. Anonymous10/07/2014

    Virginia is now for ALL Lovers! Not just straight ones! YAY US!

    Peace <3

  4. David,
    So looking forward to your wedding pictures and video!

  5. I Have just asked you on my blog " would you get married"
    How wonderful...it's not far away eh?

  6. By the way, I very much appreciate your legal analysis of the situation. My eyes cross trying to make sense of all of this; and it seems so complex and changing.