Constitution Check: What if the Supreme Court takes a pass now on same-sex marriage?

Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy, looks at one possible short-term outcome as the Supreme Court ponders same-sex marriage: the court could pass on the issue, lacking a split in the lower federal courts.

SupremeCourt_insideTHE STATEMENT AT ISSUE:

“Many people have assumed that the Supreme Court would take one of the pending gay marriages cases at or soon after the [its private] conference at the end of this month. Justice Ginsburg’s comments undermine that widespread expectation. But why challenge that public assumption now?…Perhaps simply denying all the petitions without comment would be too much like a splash of cold water, particularly for the gay rights community.”

Richard M. Re, a law professor at UCLA in Los Angeles, in a commentary on his Re’s Judicata website on September 18, reacting to Supreme Court Justice Ruth Bader Ginsburg’s discussion of the pending same-sex marriage cases, in an appearance September 16 at the University of Minnesota Law School.


The Supreme Court, for most of its modern history, has had almost complete freedom to choose the cases it will review, or not. Congress has the authority, under the Constitution, to modify its reviewing powers, but it has added increasingly to the Justices’ discretion to manage their own docket as they see fit; mandatory review is guaranteed now in only a handful of types of cases.

Legal purists like to say that it does not mean anything when the court simply denies review of a case, which it does hundreds of times every year. Most refusals to hear a case are made with no explanation at all, and the court has no obligation to give one.

Even so, if the court decides to take a pass on the same-sex marriage cases that are now awaiting the Justices’ reaction, that would have a nearly immediate and very widespread impact, whether or not the court said anything in doing so. While same-sex marriage is now legal in 19 states and Washington, D.C., a simple refusal by the Justices to deny review of all of the pending cases probably would swiftly push that number up to 30, and there is a real prospect that it could soon go as high as 35.

That is startling arithmetic. How could that be?

State bans on same-sex marriage have been struck down as unconstitutional, over the past 15 months, in three federal appeals courts, and that has set precedents for a total of 11 states. Already, three states – one in each of the geographic areas covered by those appeals courts – do allow same-sex marriage under existing law. That is true for Illinois, Maryland and New Mexico, and that situation would not be affected by what the Supreme Court did or did not do.

But, if the existing appeals court rulings are left intact, here is the likely situation that would occur almost immediately:

  • The Fourth Circuit Court’s ruling against a Virginia ban would also mean that similar bans would probably also fall in North and South Carolina and West Virginia, which are also located in that circuit. (Maryland is in that circuit.)
  • The Seventh Circuit Court has ruled against bans in the two states in its region that do not yet allow such marriages: Indiana and Wisconsin. (Illinois is in that circuit.)
  • The Tenth Circuit Court has struck down bans in Oklahoma and Utah, but that precedent almost certainly would also reach three other states in its area: Colorado, Kansas and Wyoming. (New Mexico is in that circuit.)

The bans in most states are closely similar or actually identical, and the arguments for and against them are well known, and almost always put forth in each case, with only slight variations at most. That’s why it would be virtually predictable that an appeals court ruling against the ban in one state would quickly spread across its region.

Thus, denial of Supreme Court review of the pending cases would probably translate into a right of gays and lesbians to marry in 30 states just as soon as the Supreme Court made final an order denying of review.

If, as most observers expect, another federal appeals court – the Ninth Circuit Court – strikes down bans in Idaho and Nevada, that would set a precedent for Alaska, Arizona, and Montana. (Same-sex marriage is already legal in that circuit in California, Hawaii, Oregon and Washington State.) The Ninth Circuit is the appeals court that at one point gave its blessing to a trial judge’s ruling striking down California’s famous “Proposition 8” ban, and it uses a very demanding standard for judging restrictions on gay rights.

If same-sex marriage would suddenly be legal in 35 states, bans would remain intact in 15 states, although the bans in seven of those states are now under review in federal appeals courts in three regions.

Is a 30 or 35 state scenario realistic, in any sense? Probably not. It takes the votes of only four Justices to grant review, and there were four strong dissenters last year when the Supreme Court struck down a key part of the federal Defense of Marriage Act – the ruling that set off the trend in lower courts to nullify states’ bans. And even the five Justices who were in the majority in that case might, when it comes time to vote on granting or denying review, think the issue is too important to let same-sex marriage spread widely without the Supreme Court having its say.

Of course, the Supreme Court usually grants review of cases only when that is necessary to clear up a conflict among lower courts and, so far, the lower federal courts have been unanimous over the past 15 months in nullifying states’ bans. The court has the option of simply sitting on the pending cases to see whether a split does develop, when the next appeals court gets involved.

Many observers tend to believe – and Justice Ginsburg suggested this possibility in her public remarks on the issue last week – that the Sixth Circuit Court is likely to uphold one or more bans when it rules on cases from each of the four states in its region. That ruling could come on any day.

If the Supreme Court in the meantime had turned down all of the cases now before it, and then ultimately took on a case, and upheld a state’s ban, legal pandemonium might set in on this issue across the wide swath of states whose bans have been struck down by a federal court. State officials would have the option of trying to reopen those cases. It could take years to sort that out.

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