Analysis

A wide wave of anticipation that the Supreme Court would plunge into the constitutional controversy over same-sex marriage ran into a wall of silence on Thursday.  The Justices released a list of official actions which said nothing at all on that issue.  Whether that was disappointing or reassuring, it likely will set off a new wave of interest in what the Justices do next, including next Monday.

Under the Court’s current schedule, it is not due to make any public move until Monday at 9:30 a.m. — unless it would take some action on the unrelated subject of voting rights in this year’s election, a building controversy.

Monday morning, the Justices officially start a new Term, but before they go to the bench, they will release a huge list of orders dealing with cases that built up on the docket, seeking review, over the summer months.  That new list is almost certain to be made up mainly of denials of review.

It would be hard to find a close, or perhaps even a casual, observer of the Court who would predict with any confidence that the Court will deny review of all seven pending filings on same-sex marriage, from five states.  The Court actually has been quite active on the issue this year:  on three occasions, it has temporarily blocked lower court rulings that would have cleared the way immediately for same-sex marriages to begin or to be recognized, in Utah and Virginia.

Those orders suggest, if they don’t actually prove, that the Court is preserving either a chance for the issue to be explored further in lower courts without thousands of new same-sex marriages occurring, or a chance for the Justices themselves to weigh in on the issue before that happens.

Moreover, it would only take the votes of four Justices to grant review of any one of the seven new petitions, and there are four Justices who strenuously objected in dissent last year when the Court struck down a key part of the federal Defense of Marriage Act — a ruling that actually set off nearly three-dozen rulings by lower federal courts, striking down (with only one exception) state bans on such marriages.

When the Court privately discusses the new cases, as it almost surely did at last Friday’s closed-door Conference, it would not be hard to predict that those four Justices would be arguing energetically to take on the issue, provided that they had some reason to hope that, after such a review, they might gather a fifth, majority-making deciding vote from another Justice.

Those four Justices also surely know that, if the Court does opt to deny review of all of the cases at this point, such a denial would trigger the full implementation of appeals court decisions that would spread in a short period of time to eleven more states beyond the nineteen (along with Washington, D.C.) that currently allow same-sex marriage.  That would almost certainly add an inevitability to the campaign to win same-sex marriage rights across the nation.

So, after the silence on Thursday, the focus now turns to Monday.  The new list of orders, mostly denials, will emerge first and, before the end of the day, the Court will indicate whether it is rescheduling the same-sex marriage cases for another look, at a private Conference set for next Friday morning.

After that Conference, it is expected, any orders granting new cases probably will not be publicly announced until the following Tuesday, October 14 (after a federal holiday the day before).  But, even after a second look, there would still be no guarantee that the Justices were ready to grant review.  As Justice Ruth Bader Ginsburg suggested in public remarks last month, the Court just might wait to see if there is a fresh split among federal appeals courts on the question.

If, in the coming days, one of the appeals courts that now has same-sex marriage cases under review issues a ruling upholding a state’s ban, it would create a split in outcome that would practically guarantee that the Court would then feel it had to decide the question, once and for all.

For any member of the public anxious to see the uncertainty end, however, there are no guarantees.  In fact, the Court could agree to review the marriage controversy any time up to the middle of January, and still get out a final decision before the end of the current Term, late next June.

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

Recommended Citation: Lyle Denniston, A look at what’s next on same-sex marriage, SCOTUSblog (Oct. 2, 2014, 2:21 PM), https://www.scotusblog.com/2014/10/a-look-at-whats-next-on-same-sex-marriage/