Commentary

Since early this year, the Supreme Court has stepped back into the same-sex marriage controversy five times.  While it has done little to explain those actions, it has sent some signals about its thinking.  Its most important signals may have been those it appeared to have sent Wednesday, in putting off the issuance of marriage licenses to same-sex couples in Virginia.

Between the nine lines of that order, the Court implied that it will not be rushed into a decision about which, if any, cases it is going to review.  And it left no doubt that the Justices themselves, not the lawyers or their clients, are in charge of the timing.  The Court, in short, has not yet gotten caught up in the race to settle the basic constitutional issue just as soon as it could possibly do so.

The Court actually has said very little in the nearly fourteen months since its five-to-four decision in United States v. Windsor – the ruling that did not deal with state power to ban same-sex marriage but is being widely interpreted by most lower courts as if it had very much to do with that.  It has not granted any cases on the validity of a state ban, and it has not even hinted — at least not reliably — at what it might eventually decide on the point.

The Virginia order, granting a county clerk’s plea to head off the issuance of marriage licenses to same-sex couples that would have started the next morning, is the only one of the five actions the Justices have taken that will help shape their own eventual role in confronting the basic controversy.  All of the other four dealt only with the situations in lower courts.

The Court had been urged, by all sides in the Virginia case, to speed up the process of finding a case for review by turning a simple request for delay into an actual, formal petition — a move that could have cut short several procedural steps, and set up the Virginia case as a prime candidate for review.

The Court silently refused the suggestion, simply delaying things in Virginia until after a county clerk actually files a petition for review, in the usual form and on the usual timetable.  That was a clear sign that the Court was doing its best to act as if it were business as usual, even on this hot constitutional controversy.

That development might well have slowed down not only the county clerk’s petition, but also the one already filed by state officials in Virginia, which had seemed likely to be in shape procedurally for early consideration for possible review.   Knowing that another petition involving the Virginia ban is on the way, the Court may wait for it before acting on the state’s separate petition.

Unless the pace steps up significantly on Virginia’s part of this controversy, the petition by Virginia officials may lag behind the one filed by Utah — one that seems to be accelerating.  The Utah case, in fact, might be ready for the Court to examine as early as next week or the week after — that is, if the Court were in town, and in session, and not on summer recess.

The Court, however, has given no sign that it is going to take any definite action on the new same-sex marriage cases, at least until it returns to town in September from the recess that began at the beginning of July.  Yesterday’s order, in fact, tended to reinforce that outlook.

But what of the other four orders the Court has issued this year — one in January, one in June, and two in July?  Any messages there?

Two of the orders — on January 6 and July 18 — delayed decisions by federal district courts until the Tenth Circuit could consider appeals of those decisions.  In those cases, the trial judges struck down Utah’s ban on new same-sex marriages and the separate ban on the state’s refusal to recognize existing same-sex marriages, and ruled that the state must recognize marriages that were performed during a brief period after the other ruling..  Later, the Tenth Circuit affirmed the ruling against the marriage and recognition bans; the other case, on recognition of marriages when that option existed briefly, awaits review in that court.

In both cases, it was the state that asked to delay implementation of the trial judges’ rulings.  By granting those pleas, the Court implied that it wanted an orderly review process in lower courts, and was sympathetic to the claim of state officials that chaos might ensue if same-sex couples were free to marry when the constitutional controversy remained unsettled.  (There have, in fact, been hundreds of same-sex marriages in intervals between lower court rulings in Utah and elsewhere, and their validity remains uncertain.)

Although many defenders of state bans have interpreted those two orders as signaling that the Court itself was likely to grant review of the issue later, and, indeed, that there was a good chance that the Court would overturn the lower court decisions and uphold the bans, only the former was probably an intended message.  The merits of the decision are just too weighty for the Court to be sending signals on how it would rule when a case became fully developed before it.

But no one knows for sure, because neither of those orders was explained by the Justices, and there were no noted dissents by any of the nine members of the Court.

The other two orders from the Justices came on June 4, dealing with a trial judge’s ruling striking down an Oregon ban, and on July 9, involving a trial judge’s ruling against a ban in Pennsylvania.  In a sense, those didn’t really count:  in neither was the plea for delay made by state officials; in fact, officials in both Oregon and Pennsylvania had given up defending their states’ bans.

In the first of those two cases, a private group that had been denied entry into the case wanted to mount a defense; in the second, a county clerk — who had no real authority over the state’s policy on marriage licenses and had been kept out of the case — wanted to put on a defense.

The full Court denied the Oregon plea, thus sending a clear signal that an “outsider” to a test case was not going to be given a chance to stand in for the state to defend a ban.  That, in fact, had been the actual decision the Court had issued on the same day that it issued the Windsor decision:  Hollingsworth v. Perrybarring an appeal by the proponents of the California ban, the ballot measure known as “Proposition 8.”

That Oregon denial then was cited, by title only, as a precedent by Justice Samuel A. Alito, Jr., when he turned aside the Pennsylvania county clerk’s plea.  Again, the message was that this clerk, given the actual nature of her duties, was an “outsider.”

(By the way, the Court had no problem in the Virginia case with the fact that the request for delay there also came from a county clerk.  In Virginia, county clerks are centrally involved in implementing the state’s policy on marriage licenses, and they have the authority to be in court on their own.  Indeed, the clerk — Michele B. McQuigg of Prince William County — was defending the ban after state officials switched the state’s position and gave up the defense that had been pursued by their predecessors in office.)

There is no basis for the theory that, in those two orders, the Court was signaling that it supported a decision by state officials to abandon a defense of a state constitutional provision, or that it was implying that it thought the trial judges were right in nullifying the bans.  The only real message was that those who were asking for delay were not legally entitled to ask.

Through all of this year, from January on, the Court could not help but be aware of what was happening in the lower courts, with a string of decisions nullifying state bans on same-sex marriage.  The fact that the Court has been drawn in on five occasions has kept it in the middle of the controversy, even if it has mostly kept its own counsel about what it is thinking.

With a little more than five weeks until the Justices assemble in their first private Conference, in advance of the new Term starting October 6, it is by no means clear that any same-sex marriage case will be ready for the Justices to consider it on September 29.  That depends, in part, on whether the Court will have cases before it one at a time, as each is ready, or in a group., when several are ready.

The last scheduled day for distributing a case for consideration by the Justices at the September 29 meeting is September 10 — now, just three weeks away.  The pending Utah case has a fair prospect of being ready then, but there is reason to doubt at this point that the pending Oklahoma and Virginia cases will be complete.  The lawyers involved have said they were working diligently to push matters along, but the clock is against them for action by the Justices at the outset of the new Term.

There will be plenty of time, though, to get a case before the Court for decision during the new Term.  If a case is accepted for review by sometime next January, it is almost certain to be decided before the end of the Term, late next June.

Is a grant of review a certainty in coming months?  There is never a sufficiently strong advance signal to predict that.

Posted in Cases in the Pipeline, Featured, Same-Sex Marriage, Same-Sex Marriage Post-Windsor

Recommended Citation: Lyle Denniston, Reading the Court’s signals on same-sex marriage, SCOTUSblog (Aug. 22, 2014, 12:04 AM), http://www.scotusblog.com/2014/08/reading-the-courts-signals-on-same-sex-marriage/