The U.S. Supreme Court has decided not to review lower court rulings that allow same-sex marriage in Virginia, Utah, Oklahoma, Indiana and Wisconsin. It would have required the votes of only four Justices to decide to review the issue, but the votes were not to be had. Nor did any Justice write a dissent from the denial of review.
What does today’s decision not to decide mean. Ed Whelan argues, persuasively I think, that it means the current Court agrees that there is a constitutional right to same-sex marriage and that if it were to review the question it would so conclude:
In the event that another federal appellate court rules in favor of state marriage laws, the Court’s action seems to pre-ordain that the Court, if it grants review, would overturn such a ruling. For it is difficult to imagine that the Court would let the current judgments against marriage go permanently into effect in those states and then rule in cases from other states that there is no constitutional SSM right.
(It’s conceivable, I suppose, that the Court could deny review of a federal appellate ruling upholding state marriage laws—and thus permit a sort of weird federalism (weird because it depends primarily on the composition of the appellate panel)—but that seems very unlikely, both because there would then be a circuit conflict and because the liberal justices and Kennedy are unlikely not to press their evident advantage.)
Gay marriage doesn’t bother me in and of itself. Permitting it may bring bad consequences for society or the only major consequence may be increased happiness, in the aggregate, for its participants — a good result, other things being roughly equal. Frankly, I don’t know which of these outcomes to expect.
I am bothered, though, to see the vital institution of marriage redefined by judicial fiat reversing the verdict of the electorate that will live with the consequences, whatever they turn out to be. And I’m especially bothered to see marriage redefined by the fiat of lower court judges whose potentially monumental rulings escape Supreme Court review.
UPDATE: John argues that by not deciding the case, the Court leaves open the possibility that a future Supreme Court will eventually uphold a state law banning gay marriage. This, he says, is probably why at least one conservative Justice voted not to review the issue now.
I agree with John. But, as he says, the possibility of this occurring is “slender.” Gay marriage is becoming a judicial fait accompli based on the policy preference of liberal lower court judges coupled with what Ed Whelan calls “Justice Kennedy’s stew of confusion” in the Windsor decision striking down the Defense of Marriage Act (DOMA).