Did Marriage Dodge a Bullet Today?

This morning the U.S. Supreme Court issued a series of orders, including a long list of cases in which certiorari was denied. This means that the Court will not hear those cases, and the rulings from the courts of appeal will stand. Among the cases the Court declined to hear were those from three circuits that have found a constitutional right to gay marriage. This means that gay marriage will be recognized in the states encompassed by those circuits.

It takes four votes to grant a writ of certiorari. Currently, the Supreme Court has four mostly-conservative justices and four mostly-liberal ones, with Anthony Kennedy perched in the middle. This means that at least one of the Court’s conservatives must have voted against granting cert. (The Court does not disclose which justices voted for, and which voted against, petitions for certiorari.)

Some commentators have viewed this as something of a betrayal on the part of the justice or justices in question. Ed Whelan, for example, wrote earlier today:

At least one of the four conservative justices on the Supreme Court voted against reviewing the state SSM cases, and none of the four has registered a peep over the Court’s irresponsible denial of review in the cases. As a result, Justice Kennedy’s stew of confusion in his anti-DOMA ruling has been allowed to lead to the judicial imposition of SSM in Virginia, Utah, Oklahoma, Indiana, and Wisconsin—and presumably in all the other states in the Fourth, Seventh, and Tenth Circuits.

Ed studies both the Supreme Court and issues relating to marriage much more closely than I do, so his view is entitled to considerable weight. But my own take on the vote by one or more conservatives not to hear the marriage cases is different.

The Supreme Court opened the gay marriage floodgates last year, when it ruled in United States v. Windsor that major provisions of the Defense of Marriage Act were unconstitutional. Windsor purported to deal only with the rights of gay couples that already were legally married under the law of the state in which they reside. The majority opinion, by Justice Kennedy, made explicit that the issue of whether there is a constitutional right to gay marriage was not before the Court:

This opinion and its holding are confined to those lawful marriages [i.e., those that are sanctioned by state law].

Chief Justice Roberts dissented. He took the opportunity to second Kennedy’s statement that the majority opinion did not imply a right to gay marriage:

The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their “historic and essential authority to define the marital relation,” ante, at 18, may continue to utilize the traditional definition of marriage.

But Justice Scalia, also dissenting, wasn’t buying it. He wrote that the logic of Kennedy’s opinion inevitably implies that a constitutional right to gay marriage must be recognized:

My guess is that the majority, while reluctant to suggest that defining the meaning of “marriage” in federal statutes is unsupported by any of the Federal Government’s enumerated powers, nonetheless needs some rhetorical basis to support its pretense that today’s prohibition of laws excluding same-sex marriage is confined to the Federal Government (leaving the second, state-law shoe to be dropped later, maybe next Term). …

In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “‘bare … desire to harm’” couples in same-sex marriages. Supra, at 18. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.

Lower courts have agreed with Justice Scalia, relying heavily on Kennedy’s Windsor opinion in finding a constitutional right to same sex marriage. I don’t see how anyone can read Kennedy’s opinion, which can reasonably be summarized as Hooray for gay marriage!, without concluding that the present Supreme Court would rule, 5-4, that a federal constitutional right to same sex marriage exists.

So my guess is that one or more of the Court’s conservatives voted not to grant certiorari in order to deprive the present court of the opportunity to drive the final nail into the coffin of traditional marriage. If the current Supreme Court issues no further rulings on the subject, Windsor will be its last word, and Windsor says–whether sincerely or not–that it has nothing to do with a right to gay marriage. That leaves a bit of daylight, and it may be that a future Court, with one or more of the current justices replaced by a Republican president, might walk Windsor back from the precipice. That is a slender hope, to be sure, but surely a better chance than giving the current Court a shot at the last remaining issue relating to marriage. Which, I suspect, is why at least one of the Court’s conservatives voted to deny certiorari on the three circuit court decisions.

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