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First Monday surprise on same-sex marriage: In Plain English

In June 2013, in United States v. Windsor, a divided Supreme Court struck down Section 3 of the federal Defense of Marriage Act, which until then had defined “marriage” – for purposes of over a thousand federal laws and programs – as a union between a man and a woman.  The Court’s five-to-four decision meant that same-sex couples who had been married in states where same-sex unions were permitted would have the same right as opposite-sex couples to, for example, file joint federal tax returns.

But on the same day, the Court sidestepped a ruling on whether the Constitution includes a right to marry someone of the same sex.   Also by a vote of five to four, it ruled instead that supporters of California’s ban on same-sex marriage did not have a right to defend the ban on appeal when state officials had chosen not to do so.  Within days, same-sex marriages resumed in California.    

We all assumed that the issue would be back again at the Court before too long, and that expectation only increased as lower federal courts around the country started to rely on the Court’s decision in Windsor to strike down other states’ bans on same-sex marriage – in Utah, Virginia, Oklahoma, Indiana, and Wisconsin.   All told, by last Monday the Court had before it seven different petitions asking the Court to weigh in on whether states can prohibit same-sex marriage.  With all of the parties on both sides in all of the cases in agreement that the Supreme Court should take up the question, review seemed inevitable.

Until this morning at 9:30, when the Court turned down all seven of the petitions, without comment.   It was an unusually chaotic scene in the Court’s press room even for a big announcement day.  The Court reveals which cases it will or will not review in a document known as the “order list.”  Today’s order list was particularly long:  over eighty pages.  The problem for reporters today was that over a third of those pages – roughly thirty pages – were missing from the hard copy that was distributed to them.  And the electronic version of the order list, which might have filled in the gaps, was not yet available (or at least very difficult to find) on the Court’s newly revamped website.  But eventually it became clear that the same-sex marriage petitions had been denied, and the analysis kicked in:  why did the Court decide to turn down all seven petitions, and what does this mean going forward?

On the first question – why did the Court decide to deny review, when it had granted review in the Proposition 8 case less than two years ago? – all we can do is speculate.  Although the Justices do sometimes write short opinions to explain why they are not reviewing a particular case (or why they think the Court should have reviewed the case), they don’t have to, and no one opted to do so today.  A few weeks ago, Justice Ruth Bader Ginsburg had suggested that the Court might pass on the cases this time around because all of the federal appeals courts that have considered the issue so far have struck down state bans, eliminating any need for the Court to step in to resolve disagreements among the lower courts (a factor that the Court often considers in deciding whether to grant review).  But that probably isn’t the whole story.  After all, the Justices often take cases even though there is no division among the lower courts because at least four of them (the number needed to grant review) think that there is nonetheless an important issue at stake.  (Bush v. Gore comes to mind here.)

Strategy may have also played a role in the decision to deny review.  The Court’s four more liberal Justices – Ginsburg, Breyer, Sotomayor, and Kagan – may have been content to leave well enough alone, from their perspective.  Put another way, they may have preferred to let the tide of decisions striking down state bans continue to flow steadily, rather than risk a broader decision which might turn back that tide altogether.

What is harder to imagine is why some of the Court’s more conservative Justices didn’t join forces to grant review.  Indeed, it was nearly impossible to fathom that they would allow the lower-court decisions striking down state bans on same-sex marriage to go into effect without a fight, even if (as the conventional wisdom has surmised) they remained concerned about their ability to persuade Justice Anthony Kennedy to join them in upholding the bans.   But apparently they did, and we may never know the full story until a Justice’s private papers are released, many years from now.

The second question – what happens next – requires less guesswork.  The short answer is that same-sex marriage will be legal in the five states whose bans were at issue before the Court.  Things are already moving quickly.  In Indiana, county clerks began issuing marriage licenses to same-sex couples this afternoon, and same-sex marriage ceremonies started in Virginia just after 1 p.m. today.

But today’s orders will have a broader impact as well.  Specifically, because the Court let stand the lower court decisions striking down the five bans, those decisions and their reasoning become the law of the land for other states whose federal appeals are heard by the U.S. Courts of Appeals for the Fourth (Virginia), Seventh (Indiana and Wisconsin), and Tenth (Utah and Oklahoma) Circuits.  This means that, although they were not directly before the Court, bans in North Carolina, South Carolina, West Virginia, Colorado, Kansas, and Wyoming are also effectively dead.  That would bring the number of states where same-sex marriages are legal to thirty.

To be sure, there are four other federal appeals courts that are currently considering challenges to state bans on same-sex marriage.  A ruling by at least one of them that states can prohibit same-sex marriage would create the kind of disagreement among the lower courts that might spur the Court to grant review.  But meanwhile thousands of same-sex marriages are likely to take place in the states where it is now permitted, and public support for those marriages will probably continue to grow.  So even if at some later point in time there are four Justices willing to take on the same-sex marriage question, it may be too late to put the genie back in the bottle.  Time will tell.

Recommended Citation: Amy Howe, First Monday surprise on same-sex marriage: In Plain English, SCOTUSblog (Oct. 6, 2014, 6:55 PM),