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Supreme Court Declines to Hear Challenge of Same-Sex Marriage

By Yvonne Abraham

The boston globe -- The U.S. Supreme Court declined Monday to hear a challenge to same-sex marriages in Massachusetts, dealing a second setback to a group that has been trying to put a stop to those marriages since before they began in the state on May 17.

The justices were asked to overturn the Massachusetts Supreme Judicial Court ruling legalizing same-sex marriage, on the grounds that the seven justices of the state’s highest court had exceeded their authority under the U.S. Constitution and violated the principle of separation of powers.

The U.S. Supreme Court declined to consider the case, without comment. Lawyers on both sides said the court’s refusal to take the case is no indicator of where judges in the nation’s highest court stand on the issue of same-sex marriage.

Rather, legal specialists said, it reflects the court’s reluctance to wade into the matter while it is still such a fresh source of controversy nationally. It also indicates that the arguments used in this case were weak, said Eugene Volokh, a professor of law at the University of California at Los Angeles.

“There are lots of reasons the Supreme Court could refuse to hear a case,” said Volokh, who specializes in constitutional law. “However, in this case, it’s pretty clear: The Massachusetts Supreme Judicial Court decided that the Massachusetts Constitution mandates recognition of same-sex marriage, and the Massachusetts Constitution is the business of the Massachusetts courts. The U.S. Supreme Court will not intervene on matters that have only to do with state law.”

The court hears only about 80 of the more than 5,000 cases put before it each year.

The case was brought by the Florida-based Liberty Counsel, a nonprofit group that fights for conservative causes around the country, on behalf of Robert Largess, vice president of the Catholic Action League, and 11 Massachusetts lawmakers who oppose same-sex marriage. The chief counsel for that group vowed to fight on Monday, not just in the courts, but also for a federal constitutional amendment to ban same-sex marriage.

“This case is a minor skirmish in the overall issue of same-sex marriage,” said Erik Stanley, the group’s lawyer. “The Liberty Counsel is involved in more than two dozen cases across the country on same-sex marriage, and we will continue to defend traditional marriage in those cases. The decision today underscores the need for a federal marriage amendment to define marriage as between one man and one woman.”

The federal marriage amendment, as currently worded, would nullify the Massachusetts SJC decision, said Volokh, though it is unclear what the effect of the amendment would be on those couples who have already married. Earlier this year, President Bush urged passage of the federal amendment, and since winning reelection he has vowed to help push it forward.

Monday, in response to the U.S. Supreme Court action, White House spokesman Scott McLellan said “the president remains firmly committed to moving forward on a constitutional amendment that would allow the voice of the people to be heard and involve states in this process.”

Advocates of same-sex marriage were pleased by Monday’s development, said Gary Buseck, legal director of Gay & Lesbian Advocates & Defenders, which represented the seven gay and lesbian couples who won the right to marry in Massachusetts in the November 2003 SJC ruling.