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Justices' Silence on Marriage Rights Speaks Volumes

BY Marcia Coyle
November 02, 2014

By declining on Oct. 6 to take up any of the same-sex marriage cases pending before it, the U.S. Supreme Court defied the conventional wisdom that it finally would resolve the debate over the constitutionality of state bans on those marriages.

Experienced high-court practitioners hesitate to speculate about why the justices take certain actions. But those advocating marriage equality tended to agree that, in denying review, the high court sent a clear signal that a majority thinks those bans are unconstitutional. “The Supreme Court may feel the federal judges are all coming to the same conclusion and [that] it's not necessary to intervene,” suggested Theodore Olson of Gibson, Dunn & Crutcher, co-lead counsel in one of two Virginia challenges. “It sends a fairly strong signal that federal judges who have ruled in favor of marriage equality are getting it right.”

However, Byron Babione, senior counsel with Alliance Defending Freedom, defending bans in Virginia and Oklahoma, vowed that the marriage battle would continue. “Several federal courts, including those in the Fifth, Sixth, Eighth and Eleventh circuits, still have cases working their way to the Supreme Court,” he said. “The people should decide this issue, not the courts.”

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