[Earlier posts in this symposium include contributions from: Dale CarpenterRobin Wilson, Bill Eskridge,  Scott Michelman, Neil Siegel, and Suzanne Goldberg.]

John Neiman is Chair of the Appellate Group at Maynard, Cooper & Gale P.C.

A lot of people on both sides of the same-sex marriage debate really wanted the Court to grant cert. in one of these cases, and a lot of those people on both sides were shocked when the Court told us that it was not going to do so. But I am becoming more and more convinced that what the Court did here was right. Perhaps the wisest way for the Court to address this kind of issue really isn’t through some sweeping opinion making lots of fundamental pronouncements about individual dignity and the very nature of human existence. Perhaps the wisest way for the Court to resolve this kind of controversy is through a stack of one-line procedural orders saying, effectively, that the Justices don’t think they need to take these questions on.

That would be an ironic ending to this particular legal saga, given that it is in some ways how it all began. After all, it was through a one-line procedural order that the Court in 1972 issued the decision that for decades appeared to establish that the Constitution does not require governments to recognize same-sex marriage. The lower courts in Baker v. Nelson had upheld Minnesota’s denial of a marriage license to a same-sex couple, and the plaintiffs took an appeal to the Court. But instead of issuing a lengthy opinion reflecting what was the overwhelming legal consensus against same-sex marriage at the time, the Court simply entered a unanimous one-line order noting that the plaintiffs had failed to present even a substantial argument to support their claim. That meant, presumably, that not one of the Justices who sat on that Court thought it was possible that the plaintiffs in that case could win.

By contrast, the one-line orders we saw Monday may suggest that no Justice who now sits on the Court thinks it is possible that the current plaintiffs can lose. Justice Scalia, for one, went on the record some time ago predicting that the constitutional settlement effected by Baker v. Nelson had become a thing of the past. His dissent in 2003’s Lawrence v. Texas posited that in striking down bans on same-sex sodomy, the Court had knocked out the basis for laws prohibiting same-sex marriage. His dissent ten years later in United States v. Windsor opined that the Court’s invalidation of the federal Defense of Marriage Act had sounded the death knell for state laws declining to recognize marriages between people of the same sex.

But the Court technically still hasn’t decided the question, and we now found ourselves in this exceedingly odd and uncomfortable and even unprecedented situation, where people are ninety-five-percent sure these laws are unconstitutional but nonetheless want the Court to swoop in and expressly say so. The Justices’ decision not to go that route raises all sorts of interesting questions about what may be going on inside the highest court in the land.

Consider, for example, what the cert.-pool memo for these cases might have looked like. Presumably some new clerk was assigned the daunting task of telling the Justices what to do with this bunch of highly publicized cert. petitions raising the great constitutional issue of our time. His memo could have pointed to all sorts of factors that, in the end analysis, might reasonably have pointed to the rather counterintuitive answer of “deny.” The memo could have noted that these cases involve the lower courts’ application of a decision the Court had issued only two terms ago, Windsor, to state laws that are quite similar to the law that the Court struck down in that case. The memo might reasonably have opined that the petitioners’ arguments trying to distinguish that decision are pretty weak. The memo also might have added that although many appellate courts have weighed those arguments, none has ruled in the petitioners’ favor. And that memo might have pointed out that if the Court eventually wants to take this issue on, any number of cases currently pending in other lower courts might provide the Court a better vehicle. As a general matter, memos that say these sorts of things typically don’t conclude with the word “grant.”

It’s also interesting to consider how the Justices’ voting dynamics are playing out. Justice Scalia made clear in his Windsor dissent that he thinks all these lower-court decisions are, as a matter of first principles, wrong. But he also made clear he thinks he’ll never get four of his current colleagues to sign on to that proposition. (He may be one-hundred-percent sure about this, if enough of them tipped their hands on this point when they met in their private Conference back in 2013 in Hollingsworth v. Perry.) Someone on Justice Scalia’s side of the fence would have had exceedingly good reasons to vote “deny.” Meanwhile, Justices on the other side of the fence would have had equally good reasons to vote that same way. Anyone inclined to read the Constitution as requiring governments to recognize same-sex marriage is likely quite happy with what the lower courts have been doing in this area. And Justice Ginsburg’s recent comments to the press suggest that some of those Justices may see no need to review this question unless and until a lower-court split arises. If that’s right, and if no other federal court of appeals or state supreme court ends up sustaining one of these laws, then it is conceivable that the Court will simply leave this question alone.

A bunch of people on both sides of the debate think it would be bad for things to shake out that way, but I for one am not so sure. It is not usually the Court’s job to address questions whose answers are so clear that all the lower courts agree on them. The Justices also tend to shy away from sensitive questions of social policy when they can. And although the current Court undoubtedly set the stage for all these lower-court rulings two terms ago in Windsor, there still would be something refreshing – something modest, even – about these nine Justices recognizing that on this particular question, at this particular time, the country doesn’t particularly need their input. With forty years of hindsight, the Court’s one-liner saying effectively nothing in Baker v. Nelson comes off as prudent and wise. Maybe forty years from now, our children will say the same thing about the seven orders the Court gave us on Monday.

Posted in Same-Sex Marriage Post-Windsor

Recommended Citation: John Neiman, Symposium: Going gentle into that good night?, SCOTUSblog (Oct. 7, 2014, 7:35 PM), http://www.scotusblog.com/2014/10/symposium-going-gentle-into-that-good-night/