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What If a Short-Handed Supreme Court Had Left Nationwide Marriage Equality in Limbo?

June 23, 2016

June 26 marks the first anniversary of the Supreme Court’s historic ruling in Obergefell v. Hodges that the Fourteenth Amendment requires every state to allow same-sex couples to marry. This was a life-changing ruling for me and for other lesbians and gay men across the country, ensuring that each of us, no matter what state we live in, is able to enjoy the fundamental right to marry the person of our choice and have our marriages recognized everywhere.

But June 26 will also mark a far less happy occasion  – 102 days since President Obama nominated Chief Judge Merrick Garland to fill the vacancy on the Supreme Court created by Justice Antonin Scalia’s passing on February 13 – a period during which the Republican-controlled Senate has done absolutely nothing to consider Judge Garland’s nomination. 

Since 1975, the Senate has taken an average of only 67 days to hold a confirmation vote on a Supreme Court nominee. Yet in the time since Judge Garland was nominated, Senate Republicans haven’t even given him a hearing, let alone a vote. That’s not because they’re too busy, it’s because they are engaged in crass partisan obstruction, trying to keep the Court’s vacancy open in the hope that a Republican is elected President in November. 

What does any of this have to do with Obergefell? As it happens, Obergefell is a prime example of how the Supreme Court is supposed to function in our constitutional democracy, making national rulings on critical legal questions and resolving disagreements among the lower courts, functions that have now been compromised and undermined by Senate Republicans’ refusal to do their jobs.

Obergefell was a 5-4 ruling, as closely divided as a majority decision can be. But what if the Court had been short-handed last year, and what if it had been evenly divided in Obergefell? When the Court is split 4-4, the decision of the lower court is affirmed, but no national ruling is issued. Had that happened in Obergefell, the Court would have been unable to issue a nationwide ruling on marriage equality, leaving conflicting lower court decisions in place and leaving gay men and lesbians in a balkanized America in which our enjoyment of our fundamental rights depended on where we lived.  

As a lesbian married in 2004, I’ve actually lived in that balkanized America; it’s not pretty. My wife and I are residents of Virginia, where our marriage was not recognized, although it was recognized in the District of Columbia, where we both work. How disturbing it was to head home across the Potomac River each evening and realize that we had just lost the important legal rights of a married couple, and to fear the consequences of non-recognition, whether in a hospital or elsewhere.  And particularly in our transient society, where people frequently move because of jobs, “now you’re married, now you’re not” is a recipe for great harm to families. 

Fortunately, the Supreme Court was at full strength last June, and in Obergefell was able to fulfill its critical responsibility of declaring what the Constitution requires of every single state.  

But now, thanks to the unprecedented obstruction by Senate Republicans, the Court has been short-handed for months and evenly divided this Term on a number of important issues. If that obstruction continues until the next President takes office, it will be no earlier than next spring before the Court is at full strength, leaving the country at great risk that more and more cases cannot be decided.     

Even as we celebrate the anniversary of Obergefell, it’s critical to remember that the short-handed Supreme Court is now in a position in which it may not be able to issue decisions for our nation on fundamental rights and other important legal issues. This is a serious threat to the rule of law.

This piece is cross-posted at Huffington Post.

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