Today (October 6) the Supreme Court announced that it had denied petitions for certiorari in Bogan v. Baskin (Indiana), Walker v. Wolf (Wisconsin), Herbert v. Kitchen (Utah), McQuigg v. Bostic (Virginia), Rainey v. Bostic (Virginia), Schaefer v. Bostic (Virginia), and Smith v. Bishop (Oklahoma). In these cases the U.S. Courts of Appeals for the 4th, 7th and 10th Circuits had ruled in recent months that same-sex couples have a right to marry and to have their out-of-state marriages recognized under the 14th Amendment. In each case, either the Supreme Court or the court of appeals had granted a stay of the ruling pending the states’ appeal to the Supreme Court. Now that the Supreme Court has refused to review these cases, the stays will be lifted, and five more states will quickly be added to the existing marriage equality list, which already includes 19 states and the District of Columbia.
The Supreme Court’s action will also have a quick echo effect, as lawsuits are pending before federal trial judges in another six states that are within the jurisdiction of the 4th and 10th circuits: West Virginia, North Carolina, South Carolina, Wyoming, Colorado, and Kansas. Judges in those cases are likely to grant summary judgment motions by the plaintiffs quickly, since their rulings are controlled by the court of appeals decisions. Thus, in the coming weeks marriage equality will spread to these states as well, reaching a national total of 30 states with more than 60% of the nation’s population. This would bring the issue close to the tipping point of 34 states that had allowed interracial marriages when the Supreme Court struck down Virginia’s ban on such marriages in 1967. With today’s announcement, marriage equality has swept the 7th Circuit, as Illinois adopted marriage equality legislatively last year and Wisconsin and Indiana are the only other states in the circuit.
Still to be heard from are the 6th Circuit, where the court of appeals heard oral arguments on cases from all four states in the circuit (Michigan, Ohio, Kentucky and Tennessee) early in August, and the 9th Circuit, where the court of appeals heard arguments from Idaho, Nevada and Hawaii early in September. The other states in the 9th Circuit, where marriage equality cases are pending in federal trial courts, include Alaska, Montana, and Arizona. Observers of the 6th Circuit oral argument had predicted that this might be the first circuit to rule against marriage equality, but the Supreme Court’s action today might influence how those judges are thinking about the issue. There was no dissent from the denial of certiorari, which means none of the justices was willing to go on record as opposing lifting the stays and allowing marriage equality to go into effect in five more states. This may send some sort of signal to the lower courts. In the 9th Circuit, it is widely expected that the court — which previously struck down California Proposition 8 — would rule for marriage equality.
Least far along are the 5th, 8th and 11th Circuits. In the 5th, the court has yet to schedule arguments on appeals from district court rulings in Texas and Louisiana, although it recently granted a motion to expedite briefing and hear those cases argued on the same day, probably in November. The other state in that circuit is Mississippi, where litigation is pending in the trial court. In the 8th Circuit, Minnesota and Iowa already have marriage equality, and an appeal is pending before the Arkansas Supreme Court of a marriage equality ruling by a state trial judge. Cases are pending in trial courts in other states in that circuit: North and South Dakota, Nebraska and Missouri, where a state court judge ruled on October 3 that the state must recognize same-sex marriages contracted in other states and state officials have not announced whether they will appeal the ruling. In the 11th Circuit, the circuit court has yet to schedule an argument on Florida’s appeal from a trial court pro-marriage equality ruling, and cases are pending in federal trial courts in Georgia and Alabama. Not to be forgotten are cases pending in Puerto Rico and the Virgin Islands, which are in the 1st and 3rd Circuits, respectively. All of the states in those circuits now have marriage equality, although the circuit courts have not ruled on the question.
A decision by the Supreme Court to deny a petition for certiorari is NOT a decision on the merits of the case. That the Court decided to allow marriage equality to go into effect in five states (and, by extension, 11 states) without a Supreme Court ruling on the merits seems prudent, if not widely anticipated. Justice Ruth Bader Ginsburg, a likely marriage equality supporter who has already officiated at several same-sex marriages and was part of the majority in U.S. v. Windsor, observed in a recent talk at the University of Minnesota Law School that she saw no urgency for the Supreme Court to get involved in this issue so long as there was no disagreement among the circuit courts of appeals. There was, of course, human urgency, if not legal urgency, because the rulings affecting five states had been stayed, but that urgency is immediately dissipated by lifting the stays and allowing those decisions to go into effect. The prudence of the Court’s decision to abstain inheres in the trend of public opinion. Support for same-sex marriage increases as the number of states allowing such marriages grows, so the Court’s abstention will allow that trend to continue, making a later decision on the merits even less controversial than might have been the case had the Court been deciding when “only” 19 states allow same-sex marriage.
Indeed, some have speculated that abstention by the Supreme Court may make it possible to achieve marriage equality without a Supreme Court decision. Some more states may see the handwriting on the wall, as did Hawaii and Illinois last year, and decide to amend their marriage laws to allow same-sex marriages. Even though the denial of review is not a merits decision, lower federal courts may be influenced by it in deciding the remaining cases. After all, it just takes four votes to grant certiorari. If the four most conservative Republicans — Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito – presumably opposed to marriage equality based on their dissenting opinions in U.S. v. Windsor (last year’s DOMA case), thought they had a chance of picking up the vote of Justice Anthony Kennedy, author of the Court’s Windsor decision, they would likely have voted to grant review in one or more of these cases. The four Democratic appointees — Justices Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — presumably marriage equality supporters based on their Windsor votes (and Justice Kagan has also officiated at a same-sex marriage) — may agree, as indicated by Justice Ginsburg, that there is no need to vote for review unless and until a circuit split develops. No need tempting fate, given Justice Kennedy’s public silence on the matter.
The justices maintain absolute secrecy about what is said in their private conferences, so we may never learn what Justice Kennedy may or may not have said in last week’s conference to persuade his four Republican colleagues and his four Democratic colleagues to refrain from voting to grant review, but it seems a good bet that he gave no hope to the Republicans that they were likely to get his vote for a decision reversing these court of appeals rulings. This gives grounds for optimism that if the issue does get to the Supreme Court in its current configuration, it will likely be decided in favor of marriage equality. Time might change that calculus if a vacancy develops on the Court, but that’s another story. . .