— Planned Parenthood v. Casey (1992) (plurality opinion)
The Supreme Court had egg on its face twice last week as it dealt with one of the most sensitive issues on its docket: marriage rights for gay and lesbian couples. First, the long orders list distributed to reporters on Monday [Oct. 6] omitted 33 pages, including those listing the court’s stunning decision not to hear appeals from five states seeking to salvage laws banning same-sex marriages.
Three days later, Justice Anthony M. Kennedy signed an interim order blocking same-sex marriages in Nevada even though the state had made no request to delay complying with the federal appeals court decision striking down its ban. The court’s public information office was forced into acknowledging the next day that the Nevada case was listed by mistake on an order that did put things on hold in Idaho.
These were paperwork mistakes made by the court’s staff: the court clerk’s office in the first instance, perhaps one of the justice’s law clerks in the other. The week’s bigger mistake, however, was the responsibility of the justices themselves: the confusion created by their walking away from the marriage equality issue at least for the moment.
The justices had cases from five states — Utah, Oklahoma, Virginia, Wisconsin, and Indiana — fully teed up for them to consider. The losing and the winning sides in all five urged the court to hear the cases for a speedy, nationwide resolution of the issue.
Instead, the court simply denied certiorari — to use the legal term for declining to review the lower court decisions — without a single word by explanation from any of the justices. Samuel Bagenstos, a law professor of the University of Michigan, aptly noted on Twitter that he could recall no instance in which the court had declined to review lower court decisions that had ruled so many state laws unconstitutional under federal law.
True, the cases did not present a conflict among federal circuit courts, the most frequent criterion for the Supreme Court to take up a case. Indeed, federal courts have been one ruling short of unanimous in the past year in striking down state bans on same-sex marriages. A federal judge in Louisiana in August broke the string of 30 or so consecutive victories for gay marriage advocates.
All the other federal courts, including the appeals courts for the Tenth, the Fourth, the Seventh, and, most recently, the Ninth Circuit, have found the gay marriage bans unconstitutional. As the justices returned from their summer recess, three of those rulings were ready for their consideration.
The court had skirted the marriage issue in June 2013 when it dismissed, for lack of legal standing, an effort by the proponents of California’s Proposition 8 to reinstate the state’s gay marriage ban after the Ninth Circuit had struck it down. This summer, however, Justice Ruth Bader Ginsburg told the Associated Press’s Mark Sherman that the court would not duck the issue a second time around.
Ginsburg later appeared to contradict herself by telling a law school audience on Sept. 16 that there was “no urgency” for the court to decide the issue in the absence of a circuit conflict. As Ginsburg knows full well, however, the court often agrees to hear a case even without a circuit conflict because of the importance of the issue. Surely, marriage rights for same-sex couples qualifies.
With four votes needed to grant certiorari, the cert denials imply as a matter of mathematics that one or more of the four liberal justices are not ready to force the issue. The same apparently goes for the four conservatives, including Chief Justice John G. Roberts Jr., who dissented from the ruling in June 2013 to strike down the federal Defense of Marriage Act (DOMA). And maybe Justice Anthony M. Kennedy is not ready for a showdown on the issue either.
As suggested by BuzzFeed’s Chris Geidner, Kennedy may be waiting for gay marriage to be legal in so many states that the court’s eventual ruling will simply ratify a national consensus. That strategy accords with Ginsburg’s favorable recollection of the court’s decade-long wait before striking down state bans on interracial marriages in 1967. By then, Ginsburg has recalled, most of those state laws were gone and the country was ready to accept a court decision to get rid of the rest.
If this is the strategy, perhaps it spares the Supreme Court from politicized attacks, and perhaps it even serves the eventual cause of marriage equality. The court’s decision on Friday [Oct. 10] to turn down Idaho’s bid to delay gay marriage may indicate that any other states seeking to delay the inevitable will also be turned away.
Still, the court’s actions clearly contradict the passage attributed to Kennedy at the start of the plurality opinion reaffirming abortion rights 22 years ago. Despite clearing the way for gay marriages in a dozen or more states, the court last week left the law in doubt and justice delayed for same-sex couples in the 15 other states still awaiting rulings. It was not the court’s proudest moment.
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