After months of buildup, the Supreme Court today surprised many observers by declining to review all seven same-sex marriage cases currently before it. As a result, gay and lesbian couples in Indiana, Oklahoma, Utah, Virginia, and Vermont will be able to marry immediately. In addition, couples in six other states located in the Second, Fourth, Seventh, and Tenth Circuits (Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming) will now benefit from the new legal vulnerability of their respective states’ bans.
Why did the justices choose to punt the issue for now? One possible explanation lies in the absence of dissension in the Courts of Appeals that have considered the issue. The Supreme Court has been more likely to review cases where a circuit split exists, because (1) consideration by multiple circuits serves as a proxy for legal significance, and (2) resolving the conflict promotes the goal of uniformity in interpretation of federal law. Moreover, the Court tends to grant review when it wants to reverse the lower court’s holding, as opposed to when it agrees with the lower court. Given the presence of pending appellate litigation in the Fifth (Texas) and Sixth (Tennessee) Circuits, the Court might have decided that it could wait for the possible emergence of a ruling upholding a state ban.
This explanation, however, proves unsatisfying. Intercircuit conflict does correlate with a greater likelihood of review, but it is neither a necessary nor a sufficient condition for review. The Court has taken cases where the legal issue was deemed so important that it merited review despite the absence of a circuit split, and not all of these cases involved singular historical events. Indeed, when the Court has desired to expand the scope of litigation, it has asked the parties for rebriefing and reargument, as it did in the Citizens United litigation. So when the justices really want to address an issue, they find a way, intercircuit agreement notwithstanding. It is hard to believe that six justices (under the Court’s rules, only four votes are needed to grant review) did not find the substantive issue sufficiently important to merit review.
A second explanation involves strategic decision making surrounding the consummate swing justice on the Roberts Court, Anthony Kennedy. As noted earlier, it takes only four votes to get a case accepted, but a forward-thinking justice would base his decision at least in part on whether he expected his side to prevail on the merits. Yes, the Court is more likely to hear cases to reverse the lower court than to affirm it, but the justices favoring same-sex marriage could have found reasons to justify a grant to affirm–removing uncertainty in states where bans remain unchallenged, for one. Perhaps neither side felt confident that it had Justice Kennedy’s vote. On one hand, Justice Kennedy has authored several landmark rulings in favor of gay rights, and one could understand why his conservative brethren might seek to keep another same-sex marriage case away from him. At the same time, however, he has been a stalwart participant in the Rehnquist and Roberts Courts’ federalism revolution, and a ruling on same-sex marriage would force a conflict between his rhetoric about government policies that deny LGBT individuals basic human dignity, and his rhetoric about the importance of state sovereignty.
Perhaps Justice Kennedy knows how he would square these conflicting considerations, but more to the point, perhaps his colleagues on the Court don’t know. As such, each bloc might prefer to take the risk-averse course and deny review. The conservative bloc avoids a ruling that legalizes same-sex marriage nationwide, while the liberal bloc avoids a ruling that leaves the issue to the states.
A third explanation contends that the Supreme Court felt no need to take a case to make a grand statement on marriage equality because it had already issued its grand statement last year in the Windsor case. By this reckoning, the logic underpinning the Court’s decision to strike down part of the Defense of Marriage Act could not be confined to the question of whether the federal government could refuse to confer spousal benefits upon someone recognized as married under her home state’s law. Rather, as Justice Antonin Scalia predicted in his dissenting opinion, the Windsor holding compelled the rejection of state bans on same-sex marriage. This was the message received by the overwhelming majority of lower court judges–many of whom cited Scalia’s Windsor dissent, some with barely concealed glee–who ruled on challenges to same-sex marriage bans. As Amy Davidson noted at the New Yorker, had any of these lower court rulings overstepped in their reading of Windsor, the Supreme Court had the opportunity here to set things straight (my bad not-quite-intended pun). Its decision not to decide might not produce a landmark ruling destined for the next generation of constitutional law textbooks, but it might have a landmark-sized impact nonetheless.
All of these explanations could be mooted imminently by a Fifth or Sixth Circuit ruling upholding a state ban. At that point, the Court might decide it has little choice but to intervene. But it is difficult to imagine the Court’s retreating from what it announced today, even if the opportunity to retreat were to arise. When it comes to marriage equality, there’s no putting the toothpaste back into the tube. Opponents of today’s ruling know as much, which is why their anguish is especially pronounced. Will supporters of marriage equality eventually get their triumphant Supreme Court ruling explicitly proclaiming same-sex marriage bans unconstitutional? Perhaps. What has become more probable is that the success of the effort will not hinge on their getting that ruling.