PJ Media

'A Very Conscious Decision to Kind of Let it Ride': Will Supreme Court Take Up Same-Sex Marriage?

WASHINGTON – The Supreme Court refused earlier this month to review same-sex marriage cases, leaving for another day a widely anticipated ruling on the issue – but leaving the door open for unions today, as one red state began issuing marriage licenses this week.

The Supreme Court turned down on Oct. 6 all of the seven petitions related to gay marriage, eliminating same-sex marriage bans in Virginia, Indiana, Wisconsin, Utah, and Oklahoma. Those five states joined 19 others and the District of Columbia in allowing gay marriage in the United States. The decision immediately jeopardized bans in Alaska, Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming because those states fall under the jurisdiction of the same appeals courts.

A day after the Supreme Court’s decision, the Ninth U.S. Circuit Court of Appeals in San Francisco issued an opinion striking down the gay-marriage bans in Idaho and Nevada. Arizona and Montana, which are also in the Ninth Circuit, could soon see their same-sex marriage bans overturned.

The legal ripple effects from the various appeals courts rulings the Supreme Court tacitly upheld could soon raise the number of states that allow same-sex marriage to 35.

The decision will also affect regions where appeals courts have not yet ruled.

The Sixth Circuit is expected to rule soon on the validity of same-sex marriage bans in Kentucky, Michigan, Ohio, and Tennessee.

Wyoming became the newest state to start issuing marriage licenses to gay couples Tuesday after the state attorney filed a notice that they would not challenge the Tenth Circuit’s ruling striking down the same-sex marriage bans in Oklahoma and Utah.

Last year, the Supreme Court struck down the federal Defense of Marriage Act’s (DOMA) ban on same-sex marriage in its United States v. Windsor decision. The ruling granted same-sex couples married in states where it is legal the same right as heterosexual couples to obtain federal benefits.

But on the same day, the court sidestepped a ruling on whether the Constitution includes a right for people of the same sex to marry. Many expected that a challenge against California’s same-sex marriage ban, Proposition 8, would lead to a Supreme Court ruling on the constitutionality of gay marriage. By a 5-4 vote, however, the Supreme Court decided to punt the case back to officials in California by ruling that supporters of California’s Prop. 8 did not have a right to defend the same-sex marriage ban on appeal when state officials had chosen not to do so.

The Windsor ruling, in particular, has paved the way for a wave of legal challenges against state-imposed marriage limitations. Judges have relied upon Windsor’s rationale in most of the lower-court rulings striking down state same-sex bans.

According to Freedom to Marry, advocates for same-sex couples have won 47 lower-court victories and have lost only three – the most recent defeat coming on Wednesday from a federal trial judge in Puerto Rico – since the 2013 Supreme Court decision.

After the 2013 rulings, Supreme Court observers expected same-sex marriage to be the marquee decision of the court’s 2014-15 term. Advocates on both sides of the issue had asked the court to offer a definitive ruling on same-sex marriage after the series of lower-court rulings.

The fact that no justices issued an opinion on why the court decided not to hear any of the same-sex marriage cases has generated speculation about the motives behind the Supreme Court’s silence.

It takes four votes to accept a case for argument and only one of the nine justices to ask for time and revisit the case in the next conference. With four liberals and four conservatives, and Justice Anthony Kennedy standing somewhere in the middle, either bloc could have put same-sex marriage on the court’s docket.

Legal experts say the high court’s actions do not necessarily mean that no same-sex marriage cases will be taken next year.

“The thing that strikes me the most about this is that not a single [justice] was moved to write a dissent from the failure to grant it or that not one person asked for more time to consider the cases,” said John Elwood, an appellate lawyer at Vinson & Elkins. “So it does seem to me a very conscious decision to kind of let it ride at the moment.”

Speaking at a panel hosted by the Pacific Legal Foundation (PLF), James Burling, litigation director of the PLF, said the Supreme Court is perhaps trying to avoid a backlash similar to the one against the court’s 1973 abortion-rights ruling, Roe v. Wade. That decision helped galvanize a relatively small anti-abortion movement into a powerful political force.

“A lot of people have said since [Roe v. Wade] that if the court did not decide the case as it did at that time, the issue would have percolated longer through the states and the same thing would have been achieved through various state and federal court decisions,” Burling said.

With this in mind, he said, the court’s liberals were probably thinking “that they essentially have what they need with the momentum from the lower courts so why take this up and bring all this attention and unhappiness upon us again.” And the conservative justices were probably counting votes and saying, “We don’t know where Justice Kennedy is going to go. That leaves four votes so let’s just hold off and not do anything for a while.”

“Maybe they were playing politics in a sense and trying to avoid the issue,” he continued.

No appeals court has upheld a same-sex marriage ban since the 2013 Supreme Court ruling. If a future appeals court ruling upholds a state same-sex marriage ban, creating a disagreement in the circuit courts, it is likely the Supreme Court would have to step in to resolve the split. The court has taken cases before without a split in the appeals courts. Two years ago, the court stepped in to consider the validity of DOMA even though there was no circuit split.

Lisa Blatt, an appellate law attorney at Arnold & Porter, said the court is likely to take up same-sex marriage if the lower courts reach conflicting rulings.

“I know Justice Ginsburg has said that a lot of this turns on what the Sixth Circuit does. If there is ever a split, the court will have to take it,” said Blatt, who has argued frequently before the Supreme Court. “I’m not convinced they are not taking it this term.”