Justice Clarence Thomas just dropped a big hint suggesting that he expects to lose — and for marriage equality to win — when the Court considers the constitutionality of marriage discrimination later this year. The hint can be found in a three-page dissenting opinion Thomas released on Monday, an opinion that is, itself, a very good sign for supporters of equality.
Thomas’s dissent concerned a federal district court’s decision holding that the state of Alabama could no longer deny equal marriage rights to gay couples. That court’s decision was stayed until Monday morning, unless a higher court intervened. The United States Court of Appeals for the Eleventh Circuit declined to extend the stay last week, and, on the morning that the stay was scheduled to lift, the Supreme Court also announced that it would not extend the stay. This later announcement was the subject of Thomas’s dissent — he would have stayed the Alabama ruling if it were up to him.
Thomas’s dissent was joined by only one other justice, Justice Antonin Scalia, although it is possible that some other members of the court voted to grant the stay but decided not to make their vote public.
In his dissent, Thomas argues that “[w]hen courts declare state laws unconstitutional and enjoin state officials from enforcing them, our ordinary practice is to suspend those injunctions from taking effect pending appellate review.” He has a point. Stays are a common tactic appellate courts use to maintain the pre-litigation status quo until they have time to fully consider and resolve a particular legal question. They prevent the chaos and confusion that can result if a court order striking down a state or federal law flashes in and out of existence as higher courts disagree over whether that order was correct.
The case for avoiding this confusion is especially strong in the marriage equality context. Same-sex couples started marrying in Alabama on Monday. By the time the Supreme Court hands down its marriage equality decision, most likely in June, these couples will have lived together as spouses — and enjoyed the legal benefits of marriage — for several months. If nothing else, it would be profoundly cruel for the Supreme Court to allow same-sex couples in Alabama to enjoy equal marriage rights for a period of time, only to yank those rights away a few months later.
Unless, of course, there are already five votes on the Supreme Court prepared to side with marriage equality. In that case, there would be little risk that couples who gain equal rights today will lose them tomorrow. Under that circumstance, the Court’s decision not to stay marriage equality in Alabama makes sense, as it prevents the state from violating the Constitution for several more months before the justices hand down their inevitable decision.
Towards the end of his dissent, Thomas strongly hints that he believes that there are five votes against his position that the Constitution does not extend equal marriage rights to gay couples. The Court’s decision to allow marriages to begin in Alabama, even as a marriage equality case is pending before the justices, “may well be seen as a signal of the Court’s intended resolution of that question.”