This morning the Supreme Court turned aside Alabama’s request to stay an order requiring the state to grant same sex couples marriage licenses. Alabama wanted the injunction issued as the Court considers the merits of the constitutional issues in a group of Sixth Circuit cases the Court has already agreed to hear. The result is that same sex marriage will come to yet another state (are we up to 37) and any eventual Supreme Court rejection of a constitutional right to same sex marriage seems even less likely, given the many new legal relationships recognized by the states and the changing of expectations and realities in the states.

Justice Thomas, joined by Justice Scalia, dissented from today’s order, which is no surprise given the recent similar dissents the two have issued. Some of the basis for the dissent raises some inside baseball issues at the Supreme Court. For example, there is a dispute over whether a state necessarily suffers irreparable harm whenever its laws are put on hold by a federal court on constitutional grounds. Once again, the Supreme Court majority remained silent, leaving us to guess at the Court’s reasoning and rationale. The Supreme Court’s shadow docket and secret decisionmaking grows ever more important and harder to defend. (I’ve written about this in the context of emergency voting cases.)

What struck me about today’s dissent was Justice Thomas’s recognition that these stay orders signal what is likely coming on the merits: a constitutional right to same sex marriage. (I think at this point the only question is the vote: I can see 5-4, 6-3 (with Roberts joining Kennedy and the liberals) or perhaps, though least likely 7-2 (with Alito coming too).) The tone was one of resignation of what is coming and a lament about the loss of the power of the states. Here is some language from Justice Thomas’s dissent (my emphasis):