We were all a bit stunned when the Supreme Court announced yesterday that it had declined to review any of the seven same-sex marriage cases before it. Part of the reason this outcome is so surprising is because of its profound consequences, both immediate and long-term.
The immediate consequences include a validation of the rulings of the federal courts of appeals that had weighed in on the issue (all of these courts had decided to strike down the marriage bans, although for somewhat different reasons). This, in turn, has consequences not just for those states whose marriage bans were ruled upon, but for all other states with that circuit. So, for example, the Tenth Circuit Court of Appeals struck down marriage bans in Utah and Oklahoma, but Colorado and Kansas are also subject to this ruling, despite the fact that those cases had not yet reached the door of the federal appellate court. There are different ways that the Colorado and Kansas bans can be functionally invalidated (e.g., by order of the state executive branch or through litigation). Absent a strong argument that there are state-specific factual differences between the laws, their fate is sealed.
The long-term consequences are more monumental, from a jurisprudential perspective. As soon as the Supreme Court announced its decision, the federal appellate courts lifted the stays in place on their orders, and people began to marry. Many, many people will marry today, tomorrow, and in the coming months. The only way the Supreme Court could later reverse its position (by, say, accepting certiorari on and affirming a hypothetical Fifth Circuit decision upholding marriage bans in Texas and Louisiana) would be to strip rights away from those who had already been granted them. Such a move would provoke a massive backlash, and raise serious questions about the Supreme Court’s legitimacy as an institution.
So, even though the Supreme Court has not ruled on the merits of state-level same-sex marriage bans, the issue is foreclosed, for all intents and purposes. This is a good result on the ground, but it leaves many unanswered questions about the status of gays and lesbians in our country, and the precise scope of the equality the Court has deemed appropriate to grant sexual minorities.
Why in the world would the Court take this approach? We can only speculate as to the reasons. It takes four votes to gran certiorari, so either the liberal or the conservative wing of the Supreme Court could have decided to take up the cases, acting independently. It seems obvious why the liberal wing would favor this outcome—it effectively grants near universal marriage equality immediately, without the delay involved in briefing, arguing and drafting a Supreme Court opinion.
The real question is, why would the conservative wing capitulate? It is possible that they saw universal marriage equality as inevitable after Windsor and did not want to be on the losing end of the fight again.
But the decision may have been even more strategic. Had the Supreme Court accepted certiorari and issues a decision on the merits, that opinion would have articulated a principle for LGBT equality and provided a blueprint for future equality arguments generally. With the denial of certiorari, there will be no new precedent on these issues—for now.
There is yet another way to read the denials of certiorari: as a rare expression of humility. Perhaps the Supreme Court as a whole recognized that the tide has turned on this issue, on both a popular and judicial level, and there was no need for a grand pronouncement from above. The country has managed to figure this one out, without the need for the ultimate judicial fiat.