New York Times

Justice Thomas's Dissent Hints of Supreme Court's Intentions on Same-Sex Marriage

February 10, 2015

by Adam Liptak

The Supreme Court’s decision on Monday not to delay same-sex marriage in Alabama offered the strongest signal yet that gay rights advocates are likely to prevail in coming months in their decades-long quest to establish a nationwide constitutional right to same-sex marriage.

The court's decision came with a blistering dissent from Justice Clarence Thomas, who criticized his fellow justices for looking “the other way” as another federal court pushes aside state laws, rather than taking the customary course of leaving the laws in place until the court addresses larger constitutional issues.

Since October, when the Supreme Court refused to hear appeals from rulings allowing same-sex marriages in five states, it has denied requests to stay orders requiring other states to let gay and lesbian couples marry. Largely as a consequence of the court’s inaction, the number of states with same-sex marriage expanded to 37 from 19, along with the District of Columbia, in just four months.

Last month, the court agreed to hear four same-sex marriage cases. They will be argued in April and probably decided in late June.

In dissenting from the unsigned order in the Alabama case on Monday, Justice Thomas, joined by Justice Antonin Scalia, suggested that the court was poised to establish a constitutional right to same-sex marriage, a question the court ducked in a pair of decisions in 2013.

Justice Thomas accused the majority of an “indecorous” and “cavalier” attitude in refusing to maintain the status quo in Alabama at least until the Supreme Court issues its decision in the four pending cases.

“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,” he wrote, referring to the 2013 decision striking down part of the federal Defense of Marriage Act.

“This acquiescence,” Justice Thomas added in a telling passage, “may well be seen as a signal of the court’s intended resolution of that question.”

“I would have shown the people of Alabama,” Justice Thomas concluded, “the respect they deserve and preserved the status quo while the court resolves this important constitutional question.”