When the Supreme Court of the United States declined to stay a Federal Injunction allowing same sex marriages in Alabama on Monday it was a given that Clarence Thomas (joined by Justice Alito) would raise his objections in a dissenting opinion.
Thomas, Alito (and Scalia) have voiced their opposition to marriage equality in previous opinions, so there is little reason to believe this time would be any different.
However, Thomas did much more than that. He practically admitted that the fight against marriage equality may be on its last legs.
Yet rather than treat like applicants alike, 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, 570 U. S. ___ (2013) (slip op., at 25-26). This acquiescence may well be seen as a signal of the Court’s intended resolution of that question.
In reality, this development shouldn’t surprise anyone. When the Supreme Court struck down the Defense of Marriage Act, Justice Scalia hinted, in his dissent, that state laws denying marriage equality would come tumbling down.
The majority arms well every challenger to a state law restricting marriage to its traditional definition,
Indeed, most Federal Courts struck down state laws that banned marriage equality and many of them quoted Scalia’s dissent in their rulings.
In addition, Thomas (rightly) points out that common practice is for the court to suspend these injunctions as a means to maintain the status quo until the legal question has been considered and resolved. It prevents the sort of chaos and confusion that would be inevitable regarding the legal status of same sex marriages that would occur if Federal Court strikes down a state’s ban on marriage equality and the Supreme Court subsequently upholds that law.
Obviously, all the justices on the Supreme Court are aware of both the Court’s practice and the issues that would arise if the Court were to uphold a state ban on same sex marriage. The fact that the majority on the Court refused to block same sex marriages in Alabama is the latest indicator that marriage equality is on the verge of being a reality across the United States.
Thomas is on the wrong side of history in his effort to block marriage equality. Today, for all purposes, he admitted it.