The Supreme Court surprised the world of constitutional law groupies and pundits and on October 6th refused to grant review on six petitions before the Court addressing SSM bans in several states. As I have noted here many times, although not always a guarantee, but one’s chances of having a case heard are enhanced if there is a difference of opinion among two or more Circuits. In these petitions from the states, the questions, the reasoning for the lower court decisions and the conclusions were all basically the same. Thus, there was no split among the circuits.
Some pundits have characterized this as “Roberts brief progressive moment” while others on the Right have called the Court “chickens” for avoiding the issue. Neither statement is true. As to the latter charge, they did not “avoid” the issue since there was no issue to avoid in the first place. When several disparate Circuit Courts basically come to the same conclusion, the Supreme Court will generally not touch the issue unless it is so grotesquely out of step with the federal Constitution. As for the brief progressive moment, it less a surrender to the inevitability of gay marriage or some sudden epiphany by the conservative members of the Court. It is realism.
It takes four votes to accept a case. There are 4 votes there- Roberts, Alito, Scalia and Thomas. One or more of those 4 opted not to take the cases. There is a good reason for this. If you are a conservative member of the Supreme Court that believes states should be allowed to decide the parameters of marriage through their courts, their legislatures, or the ballot box, you would be inclined to take these cases. In effect, the Right and the Left are arguing for the Court to take the cases to make some definitive decision and put the issue to rest. But, there are likely only four votes to support state bans on SSM, four against the bans and one swing vote- Kennedy.
Considering the fact that Kennedy authored the Windsor decision that addressed DOMA and considering the fact that the lower courts used Windsor as justification for striking down state bans, does anybody in their right mind honestly believe Kennedy will vote with the conservatives? That would be like saying: “Oops, I made a mistake,” or “Hey guys- that is not what I really meant.” If that were the case, we would have an immediate de facto national gay marriage law. Yes, gay marriage became a reality in several more states over night and three states have fallen under similar court rulings since (Alaska, Idaho and Nevada).
Now the story gets tricky and it leads directly to the Sixth Circuit which is Michigan, Ohio, Tennessee and Kentucky. District Court decisions striking down gay marriage bans in those states are before the Circuit Court now. Of particular interest is the Michigan ban. During oral argument, it became obvious that one judge was in favor of the ban, one was against and the other- Sutton- undecided and trying to find a middle ground.
That middle ground snakes back to the Burger Court and another non-decision: Baker vs. Nelson. In that case, a gay Minnesota couple tried to get married, were denied and appealed that denial to the Supreme Court. The Court then refused to take the case claiming there was no federal issue under the Constitution at dispute. Thus, there was no gay marriage and that is how things stood for a very long time. During oral argument, Justice Sutton reasoned (painfully at times) that this non-decision was still binding on lower courts. If so, the states are free, through whatever mechanism, to ban SSM.
So if gay marriage was not an issue under the federal Constitution to a somewhat more liberal Supreme Court in the 1970s, why is it now? Simply, a reactionary Republican-led Congress in the 1996 passed the Defense of Marriage Act (DOMA), the law at issue in the Windsor case. In effect, they nationalized marriage instead of leaving it in its rightful place- the states. Absent DOMA, gay couples likely would have survived constitutional review under the Immunity and Privileges Clause of the Constitution. If gay marriage truly was the wave of the future, then more states would have recognized gay marriages. For example, a gay coupled married in Massachusetts would have to be considered a married couple should they move to any other state and enjoy the same legal protections afforded opposite sex married couples under the Immunity and Privileges Clause. Congress could have even passed a law saying that and they would be on firm constitutional ground doing so. But, DOMA did not say that. It was less a “defense of marriage” and more a “defense of traditional marriage.”
But should the 6th Circuit uphold the SSM ban in Michigan somehow, then you would have your split in the Circuit Courts. Would the Supreme Court then take an appeal? Most likely it would, although the timing of their decision in the 6th Circuit would determine if the Supreme Court would take the appeal this term. The docket is quickly filling up and time is running out. For my money, I do not believe the 6th Circuit is in any hurry to release a decision.
And there is a problem. The Michigan case is rife with pitfalls for the opponents of SSM. The District Court record is heavy with evidence indicating that denying the right to marriage to gay couples causes economic and other harms. This was a well-argued case at the lower court levels with substantial evidence that buttresses the case FOR gay marriage. Although the Supreme Court is not a trier of fact (that is the role of the District Court) they would have to rule whether a 6th Circuit Court of Appeals decision overturning the District Court was correct on constitutional grounds. Quite frankly, some Justices would have to contort their previous legal reasoning to justify SSM bans, including some of the conservative ones.
Refusing to hear these cases actually falls in line with established Supreme Court practices. Some argue that it is the role of the Supreme Court to jump in and decide these difficult questions and I have read these arguments from both the Left and the Right. However, what one is actually arguing is for an activist Court. And isn’t that an underlying principle of conservatism- avoiding an activist Court?