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Mixed signals on same-sex marriage (UPDATED)

UPDATED 6:03 p.m.   The Supreme Court may be poised to start acting on the same-sex marriage controversy, although the post below casts some doubt on that.  It now appears that some lower courts will not go ahead with other cases while they await the Justices’ action.  On Thursday afternoon, the U.S. Court of Appeals for the Tenth Circuit put on hold a pending appeal by the state of Colorado, with the delay in that case to continue until the Supreme Court acts on two prior rulings by that court striking down other states’ same-sex marriage ban.  Colorado’s ban has been nullified by a federal trial judge.  In asking that the state’s appeal be “held in abeyance,” the state’s attorney general noted that the two Tenth Circuit marriage cases had now reached the Supreme Court.



If Justice Ruth Bader Ginsburg was speaking for the Supreme Court on Tuesday night in Minnesota about how the Justices will deal with the same-sex marriage issue this Term, the question just may go untouched for a time.  She seemed to be saying that, until there is a fresh split among federal appeals courts on the issue, there would be no need for the Court to move with dispatch to confront the constitutional controversy.

Those comments appeared to run directly counter to the impression the Court gave only a week earlier, when it rushed its planning to take up the question at its first Conference of the Term on September 29.  Without waiting for all of the filings to come in on cases from five states, the Court staff — probably not acting independently — referred all seven pending petitions for that early review.  That is almost unprecedented, under the Court’s rules and normal procedures.

Justice Ginsburg appeared at the University of Minnesota Law School, for a videotaped conversation with a professor, Robert Stein.  Among those attending the event was a professor at the school, Dale Carpenter.  In a post Wednesday night for The Volokh Conspiracy, Carpenter, after listening to the recorded conversation, wrote this:

“The discussion of same-sex marriage begins with a question from Professor Bob Stein . . . .  After briefly recounting how the Court left the issue open in 2013 by dismissing the Proposition 8 case, Justice Ginsburg says the following . . . :

So far the federal courts of appeals have answered the question the same way–holding unconstitutional the bans on same-sex marriage. There is a case now pending before the Court of Appeals for the Sixth Circuit. Now if that court should disagree with the others then there will be some urgency in the Court taking the case. But when all the courts of appeals are in agreement there is no need for us to rush to step in. So it remains to be seen what the Sixth Circuit will rule, when it will rule. Sooner or later, yes, the question will come to the Court.”

No one outside the Court can know whether the Justices have already begun discussing among themselves how they will react to the same-sex marriage cases already awaiting their initial examination.  Justice Ginsburg’s comments could represent only her own views at this point, or they might reflect perceptions that some of her colleagues may share.

Taken on their own, her remarks could suggest the following:  first, that she — and perhaps other Justices —  are not particularly eager to get involved yet; second, that she and maybe others may not be prepared to vote for review unless there is a division among federal appeals courts; third, that such a division would have to be fresh, because the wave of recent federal appeals courts’ decisions striking down marriage bans does, in fact, conflict with a 2006 decision by the U.S. Court of Appeals for the Eighth Circuit upholding such a ban, which supporters of such bans have been citing to the Court in the new cases; and, fourth, that the Court is well aware of comments by observers who attended a recent hearing before the U.S. Court of Appeals for the Sixth Circuit that the panel had given indications that the outcome could be to uphold one or more bans in the four states involved in that hearing.

There is no timetable for the Sixth Circuit to issue its opinion, but it — like other federal courts in recent months — has been working on those four states’ cases on an expedited schedule.  And there has been no sign that the Sixth Circuit is going to put its review on hold, now that the Supreme Court is moving toward its initial examination of the cases already pending.

If, in fact, the Justices are waiting to see what the Sixth Circuit does, they could simply take no action on the pending petitions, simply putting them off, week to week.

There does not seem any realistic possibility that, absent a new conflict among the appeals courts, the Court will vote to deny review in any or all of the pending cases.  If the Court were to do that, it would open the way for same-sex marriages to begin taking place immediately in those five states, but quickly spreading to other states that are located in the same geographic areas governed by the three appeals courts that so far have struck down bans on such marriages.

The Court, on three occasions since January, has put lower court decisions on the marriage issue on hold, thus at least hinting that it does not want those marriages to start occurring in waves until after it has had a chance to rule on its own.  To deny review now, thus opening the way to thousands of new same-sex marriages, and recognition of many more existing marriages, would run counter to those delaying orders.

It was highly unusual for Justice Ginsburg to raise the curtain on internal considerations that may be at work as the Court approaches its first look at the new round of same-sex marriage cases.   However, several members of the Court, including Justice Ginsburg, in recent years have been much more willing to talk about the Court’s work in public fora, such as televised conversations of the kind that she had Tuesday night in Minnesota.

Until the first orders are issued out of the Justices’ September 29 Conference, it will not become clear whether the Court will take any action then on the controversy.  If, however, the Sixth Circuit should issue a conflicting decision between now and then, it does appear that Justice Ginsburg would expect the Court to grant review, and move ahead promptly.

Another federal appeals court, the Ninth Circuit, has held a hearing on same-sex marriage cases from three states, but it is widely expected that that Circuit Court — which has adopted a rigorous test for judging claims of discrimination against gays and lesbians — will follow the trend of other appeals courts that have ruled.  The Ninth Circuit’s decision could come at any time.

The only other federal appeals court where same-sex marriages are currently pending on appeal is the Fifth Circuit, but it has not yet set a hearing date in a Texas case.  The decision in that case, when it emerges, could go in favor of the Texas ban, depending upon the make-up of the panel that gets assigned to it.


Recommended Citation: Lyle Denniston, Mixed signals on same-sex marriage (UPDATED), SCOTUSblog (Sep. 18, 2014, 8:24 AM),