BY CLAIRE HOWE — At the beginning of its October 2014 term, the Supreme Court released orders declining to review seven petitions based on state laws that banned same-sex marriage in five states. The states directly affected include Indiana, Oklahoma, Wisconsin, Utah, and Virginia. In declining to hear the cases, the Supreme Court effectively affirmed the circuit courts’ decisions, allowing the orders striking down state law bans to remain intact. The Supreme Court’s declination will likely also affect state laws in Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming, as they fall within the jurisdiction of the same federal appellate courts that struck down the bans. As a result of this momentous declination, the Supreme Court has essentially legalized same-sex marriage in 11 more states and paved the way for nationwide marriage equality.
Interestingly, the declination has sparked uproar on both sides of the debate, with opponents and proponents alike voicing concerns that the Court has abdicated its “responsibility for constitutional adjudication,” leaving the country divided and without direction on an important issue. In all seven petitions in which supporters of the bans (appellants) appealed their losses, plaintiffs also urged consideration of the cases, in hopes that the Supreme Court would finally rule on the issue of same-sex marriage and strike down bans nationally. But the Court declined to do so. Analysts are now asking why, with only four votes needed to grant certiorari, could neither the liberal nor conservative camps muster the necessary votes?
Some analysts argue that it was a strategic move by all the Justices. One view is that the more liberal Justices likely denied certiorari because letting the lower court decisions stand allowed their preferred outcome to prevail, while also allowing them to avoid the risk of relying on swing-voters to get a majority. Analysts also say that denial was a calculated move by the swing-voters to avoid a messy split decision and promote democratic values. Further, analysts argue that the more conservative Justices benefitted from denying certiorari, in that the conservative Justices likely sought to preserve the issue of nationwide same-sex marriage for a later day. Given the composition of the Court, this may be the best option for those seeking to disallow same-sex marriage.
Other commentators believe that the Court was actually giving a thumbs-up to federal circuit courts that have struck down same-sex marriage bans, as the Court would not have “allow[ed] those decisions to stand and go into effect if it were going to rule the other way.” Yet other commentators opine that, while both sides urged the Supreme Court to consider their cases, the Court ultimately declined to review the decisions because there was no circuit split on the issue.
Whatever the motivating factors behind the Court’s decision may be, one thing is clear: inaction may be the biggest form of action. By leaving intact the federal appellate courts’ decisions, the Supreme Court has effectively sanctioned the appellate courts’ actions and promulgated same-sex marriage rights. So what does this mean for the future of same-sex marriage? Challenges to state law bans against same-sex marriage will likely continue to be successful. While twenty states still statutorily ban same-sex marriage, the future looks bright for same-sex marriage and equal rights advocates. Some commentators even go so far as to say that the Court’s denial “suggests that the whole country has a right to gay marriage—some states just haven’t realized it yet.” And though the Court has not yet ruled on the core issue of same-sex marriage, the Court’s declination to review the seven petitions certainly sends a strong message to the federal appellate courts, which they already seem to be following: see our rationale in United States v. Windsor. As commentators note, even though United States v. Windsor did not directly address same-sex marriage, no state law banning same-sex marriage has been upheld on challenge to a federal appellate court since that case was decided.
This is not to say that the issue of same-sex marriage has been resolved. Given the national divide, it is foreseeable that a federal appellate court could uphold a law banning same-sex marriage, and if it were to do so, it would force the Supreme Court to hear the case. In order to get the issue of same-sex marriage before the Supreme Court, however, a federal appellate court must be willing to risk reversal on appeal—a risk much less likely to be rewarded given the now abundant case law striking down various state law bans and the national trend in favor of equal rights.