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Did two Justices vote to hear same-sex marriage cases?

Justice Clarence Thomas, joined by Justice Antonin Scalia, gave a strong hint on Wednesday afternoon that they probably had cast votes to grant review of same-sex marriage cases in recent weeks, but could not persuade enough of their colleagues to do so.

In a separate opinion they issued in a case having nothing to do with the marriage controversy, Justice Thomas wrote that, “for reasons that escape me,” the Court had not agreed to review lower court decisions striking down state bans on same-sex marriage laws.  He cited four denials of review that had occurred on October 6, and two refusals to postpone such lower-court rulings in other states.  In none of those instances had the Court revealed how the Justices had voted, and there were no recorded dissents.

The focus of Justice Thomas’s opinion was an expression of his frustration that the Court does not more or less routinely agree to review lower court decisions that strike down state laws under the federal Constitution, as it does when the nullified law was a federal statute.

“Indeed,” he wrote, “we often review decisions striking down state laws, even in the absence of a disagreement among lower courts.”  He provided a few examples of that, including the agreement in 2012 to review a federal appeals court decision nullifying California’s “Proposition 8” — that state’s ban on same-sex marriage.  (The Court wound up not ruling on the validity of the ban, because of a procedural defect in the appeal.)  It seemed clear that the two Justices had been among those voting to take on the Proposition 8 case.

After reciting with obvious approval some instances in which the Court had taken on cases involving invalidated state laws, the opinion went on: “But, for reasons that escape me, we have not done so with any consistency, especially in recent months.”  Then followed his list of the denials of review or stays in the recent same-sex marriage cases.

Turning back to the Arizona law that was directly at issue on Wednesday (not dealing with same-sex marriage), Justice Thomas made a comment that did seem also to apply to the denials in the same-sex marriage cases: “At the very least, we owe the people of Arizona the respect of our review before we let stand a decision facially invalidating a state constitutional amendment.”  (The same-sex marriage bans are, usually, written into state constitutions.)

The Court will shortly have a chance to vote on granting review of the same-sex marriage controversy, but in a case in which state bans have been upheld, not struck down.  Several petitions are expected to be filed soon, some as early as tomorrow, challenging the decision last week by the U.S. Court of Appeals for the Sixth Circuit upholding bans in four states in its region.

Recommended Citation: Lyle Denniston, Did two Justices vote to hear same-sex marriage cases?, SCOTUSblog (Nov. 13, 2014, 6:01 PM),