Justices' Silence on Marriage Rights Speaks Volumes

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.”

Evan Wolfson, founder of Freedom to Marry, the national campaign for marriage equality, agreed that the battle is not over. Still, he said, the high court's inaction amounted to a “huge step forward” for the cause, because it effectively opens the door to same-sex marriage in five to 11 states that represent 60% of the American people. “We have a national majority and soon we'll have a super national majority,” Wolfson said. “But it's not a done deal until it's done. A glass 60% full is a good thing but if ' 40% [is] empty, you're not treated fairly. We want the Supreme Court to finish the job.”

The Court, without comment, refused to hear any of the seven petitions from five states whose bans on marriage equality federal appellate courts had struck down. The denials mean same-sex marriages are legal in Indiana, Oklahoma, Utah, Virginia and Wisconsin and where federal appeals courts had ruled such prohibitions unconstitutional. “Because the Supreme Court let the decisions of the Fourth, Seventh and Tenth circuits stand, that means the lower courts where there are cases pending in those circuits will soon issue orders allowing same-sex couples to marry,” said Jon Davidson of Lambda Legal, co-counsel in another of the Virginia cases.

The other states covered by those three circuits are Colorado, Kansas, Illinois, Maryland, New Mexico, North Carolina, South Carolina, West Virginia and Wyoming. Counting those states, marriage equality would be the law in 30 states and the District of Columbia.

Why Wait?

Predictions that the justices would hear a case this term were based partly on the fact that they had issued temporary stays blocking the rulings by the Fourth and Tenth circuits. Those stays generally indicate that the high court is interested in taking a case on the merits. But those assumptions also were based on the fact that federal courts had stricken five state laws or constitutional amendments; under the circumstances, even without a split among the circuits, the justices seemed likely to step into the controversy.

“The court typically has been very hesitant to get ahead of the public will, but has done so when striking down segregation (Brown v. Board of Education) and the ban on interracial marriage (Loving v. Virginia),” said Elizabeth Cooper, faculty director of the Feerick Center for Social Justice at Fordham University School of Law, via e-mail. Now that a majority of Americans support marriage equality, she added, “The court's decision to not step in and to let these marriage rights stand, is, perhaps, a recognition of this growing support.”

Jenner & Block's Paul Smith, co-counsel in Virginia's marriage class action, suggested a strategic move by some of the justices. “I do think if the four dissenters in [United States v.] Windsor had any reason to think they could get five votes [against marriage equality] they would have granted cert,” he said, referring to the 2013 ruling striking down the federal Defense of Marriage Act's narrow definition of marriage. The dissenters were Chief Justice John Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr. “Then the question is: Do the rest of the justices have reasons to grant cert now? And I guess they concluded it would be better to let things go for awhile, as long as there is no compelling reason to take a case,” he said.

Justice Ruth Bader Ginsburg had suggested in some earlier interviews that the court might wait for a circuit split to develop. During recent arguments in the Sixth Circuit, a three-judge panel appeared likely to uphold state bans and thus create such a split.

Court scholar Erwin Chemerinsky, dean of the University of California, Irvine School of Law, believes the justices will wait for a split. But, he added, “It is hard to understand what the court thinks is gained by waiting for a circuit split here rather than it resolving the issue for the nation.” And as additional weddings go forward, Smith said, “It's going to be very difficult for the court to come along in some later case and reverse course. I think it would be a severe impingement on people's fundamental liberties to unmarry them.”

Not Giving Up

Opponents of same-sex marriage remain undeterred by the court's inaction.

“The good news is that time is not on the side of those who want to redefine marriage,” Family Research Council President Tony Perkins said. “As more states are forced to redefine marriage, contrary to nature and directly in conflict with the will of millions, more Americans will see and experience attacks on their religious freedom.” Perkins urged Congress to enact the State Marriage Defense Act, which, he said, “ensures that the federal government in its definition of marriage respects the duly enacted marriage laws of the states.”

Marcia Coyle is the chief Washington correspondent for The National Law Journal, an ALM sister publication of this newsletter.

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.”

Evan Wolfson, founder of Freedom to Marry, the national campaign for marriage equality, agreed that the battle is not over. Still, he said, the high court's inaction amounted to a “huge step forward” for the cause, because it effectively opens the door to same-sex marriage in five to 11 states that represent 60% of the American people. “We have a national majority and soon we'll have a super national majority,” Wolfson said. “But it's not a done deal until it's done. A glass 60% full is a good thing but if ' 40% [is] empty, you're not treated fairly. We want the Supreme Court to finish the job.”

The Court, without comment, refused to hear any of the seven petitions from five states whose bans on marriage equality federal appellate courts had struck down. The denials mean same-sex marriages are legal in Indiana, Oklahoma, Utah, Virginia and Wisconsin and where federal appeals courts had ruled such prohibitions unconstitutional. “Because the Supreme Court let the decisions of the Fourth, Seventh and Tenth circuits stand, that means the lower courts where there are cases pending in those circuits will soon issue orders allowing same-sex couples to marry,” said Jon Davidson of Lambda Legal, co-counsel in another of the Virginia cases.

The other states covered by those three circuits are Colorado, Kansas, Illinois, Maryland, New Mexico, North Carolina, South Carolina, West Virginia and Wyoming. Counting those states, marriage equality would be the law in 30 states and the District of Columbia.

Why Wait?

Predictions that the justices would hear a case this term were based partly on the fact that they had issued temporary stays blocking the rulings by the Fourth and Tenth circuits. Those stays generally indicate that the high court is interested in taking a case on the merits. But those assumptions also were based on the fact that federal courts had stricken five state laws or constitutional amendments; under the circumstances, even without a split among the circuits, the justices seemed likely to step into the controversy.

“The court typically has been very hesitant to get ahead of the public will, but has done so when striking down segregation (Brown v. Board of Education) and the ban on interracial marriage (Loving v. Virginia),” said Elizabeth Cooper, faculty director of the Feerick Center for Social Justice at Fordham University School of Law, via e-mail. Now that a majority of Americans support marriage equality, she added, “The court's decision to not step in and to let these marriage rights stand, is, perhaps, a recognition of this growing support.”

Jenner & Block's Paul Smith, co-counsel in Virginia's marriage class action, suggested a strategic move by some of the justices. “I do think if the four dissenters in [United States v.] Windsor had any reason to think they could get five votes [against marriage equality] they would have granted cert,” he said, referring to the 2013 ruling striking down the federal Defense of Marriage Act's narrow definition of marriage. The dissenters were Chief Justice John Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr. “Then the question is: Do the rest of the justices have reasons to grant cert now? And I guess they concluded it would be better to let things go for awhile, as long as there is no compelling reason to take a case,” he said.

Justice Ruth Bader Ginsburg had suggested in some earlier interviews that the court might wait for a circuit split to develop. During recent arguments in the Sixth Circuit, a three-judge panel appeared likely to uphold state bans and thus create such a split.

Court scholar Erwin Chemerinsky, dean of the University of California, Irvine School of Law, believes the justices will wait for a split. But, he added, “It is hard to understand what the court thinks is gained by waiting for a circuit split here rather than it resolving the issue for the nation.” And as additional weddings go forward, Smith said, “It's going to be very difficult for the court to come along in some later case and reverse course. I think it would be a severe impingement on people's fundamental liberties to unmarry them.”

Not Giving Up

Opponents of same-sex marriage remain undeterred by the court's inaction.

“The good news is that time is not on the side of those who want to redefine marriage,” Family Research Council President Tony Perkins said. “As more states are forced to redefine marriage, contrary to nature and directly in conflict with the will of millions, more Americans will see and experience attacks on their religious freedom.” Perkins urged Congress to enact the State Marriage Defense Act, which, he said, “ensures that the federal government in its definition of marriage respects the duly enacted marriage laws of the states.”

Marcia Coyle is the chief Washington correspondent for The National Law Journal, an ALM sister publication of this newsletter.