Why Did SCOTUS Pass on Same-Sex Marriage?

“I’m not ready to surrender to a few folks in black robes,” said Idaho Governor Butch Otter (R) during a gubernatorial debate. “I’m not ready to surrender the will of the people in the state of Idaho, as they expressed in 2006 in an overwhelming majority.” Otter’s vows are directed at the Supreme Court’s decision not to hear circuit court of appeals cases regarding same-sex marriage. This Supreme Court punt effectively upheld court of appeals rulings that struck down gay-marriage bans in quite a few states, including Idaho. Otter isn’t the only one unhappy with this decision by the Court. While many are thrilled to see this ban lifted, individuals on both sides of the debate have expressed confusion and, in some cases, anger at the Supreme Court’s refusal to hear the cases. A Supreme Court ruling would have definitively created a precedent for the entire nation, but the Court’s decision to abstain from hearing the cases is ultimately the right one in these circumstances. To grasp why this is true, an understanding of the ruling and its implications is necessary.

One might ask: “How can the Supreme Court uphold an appeal’s court decision without actually making a decision themselves?” To which someone else might reply, “Great question!” The judicial process can be a bit confusing, especially in cases such as this. Essentially, the Court’s actions involved cases from five states: Utah, Oklahoma, Wisconsin, Indiana and Virginia. Each of these five states had, in their state constitutions, an amendment that defined marriage as exclusively between one man and one woman, effectively banning same-sex marriage. Same-sex couples in each state, believing their constitutional rights to equal protection under the law were being violated by such bans, brought legal charges against the states. The claims of the plaintiffs in Indiana (Bogan v. Baskin), Wisconsin (Walker v. Wolf), Utah (Herbert v. Kitchen), Virginia (McQuigg v Bostic, Schafer v. Bostic, Rainey v. Bostic) and Oklahoma (Smith v. Bishop) rested largely on the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment in the US Constitution as well as prior Supreme Court decisions, including the ruling last year that struck down a provision of the Defense of Marriage Act and the 1967 Loving v. Virginia ruling, in which the justices invalidated a Virginia law preventing interracial marriages.

The plaintiffs first brought their challenges to federal trial courts in their own states, and, in each case, the plaintiffs prevailed. These federal trial court rulings would only have been binding within each state, but state officials, attempting to defend state law, appealed each case to their respective federal appeals courts. The federal appeals court system, the judicial “rung” under the Supreme Court, is partitioned into thirteen different circuits, with each having jurisdiction over the states within the circuit. The five states in which the original cases originated are in three different appellate circuits: the 4th (Virginia), the 7th (Wisconsin and Indiana) and the 10th (Utah and Oklahoma). For example, the appeals court ruling on the cases from Virginia became law not only in Virginia, but also in all the other states in the 4th appellate circuit: West Virginia, Maryland, North Carolina and South Carolina. In each of the cases that went to the 4th, 7th, and 10th appeals court, the state’s amendment banning gay marriage was struck down.

The Supreme Court, if it had chosen to, could have heard the appeals court cases and made a ruling once and for all on the legality of same-sex marriages across the nation. But instead, the court decided to let the appeals court rulings stand, thereby automatically legalizing same-sex marriage in the five states in which the cases originated. As a direct result of the decision, 24 states now permit same-sex marriage.

But the effects stretch further: This decision’s precedent applies to all states under the jurisdiction of the 4th, 7th, and 10th appeals courts. As a result of this so-called “technicality,” Idaho, Nevada, Wyoming, West Virginia, North Carolina, Alaska, Arizona and Colorado all now also allow same-sex marriage, raising the total number of states allowing marriage for same-sex couples to an astounding 32 states. There is also the likelihood that South Carolina, Kansas and Montana will join the list. These three states are within the 10th, 4th, and 9th circuits respectively (all circuits that have lifted the gay-marriage ban), but the three states received stays from the Supreme Court, allowing state legislators the chance to appeal the decision before it takes effect.

According to estimates from the Williams Insitute at the University of California at Los Angeles, when the rollout is complete, 65 percent of gay couples and a majority of all Americans will live in a place where same-sex unions are legal. Such is a resounding victory for same-sex marriage advocates — but not everyone, including supporters of gay marriage, are as happy as one would think. The Supreme Court’s decision not to rule on these cases and the subsequent legalization of same-sex marriage in a majority of states bring with them a fair share of criticism, outrage and debate.

First of all, there’s the old-time, classic contest between federal power and states’ rights. The federal and appeals courts’ rulings on these same-sex marriage bans are a realization of conservative Justice Antonin Scalia’s warnings about the impending violation of state sovereignty in his dissent in the Unites States v. Windsor (2013) case. In US v. Windsor, the Supreme Court struck down the provision of the Defense of Marriage Act that restricted the federal interpretation of “marriage” and “spouse” to apply only to heterosexual unions — a decision Scalia very much disagreed with. His sarcasm-tinged, fuming dissent rips apart the decision to strike down the DOMA provision, evident in examples such as, “That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere ‘primary’ in its role.” Shining through his anger in the dissent, Scalia advances a very serious, very prevalent issue — whether the regulation of marriage is a state right or a right of federal courts and federal law.

State representatives like Otter are of the opinion that such is a state right. Other such supporters, such as Utah Governor Gary Richard Herbert (R) and Utah’s Attorney General Sean Reyes affirm this position, stating how nothing in the US Constitution “prohibits” the previously 17 states with same-sex marriage from “adopting that marriage policy” — and “nothing in the Constitution forbids” the people in 33 states who decided “to preserve marriage as a man-woman unit” from “affirming that marriage policy.”

Others have attacked the decision of the Supreme Court to let the appeals’ court rulings stand. Richard Thompson, president and chief counsel of Thomas More Law Center (a nonprofit that represents the National Coalition of Black Pastors and Christian Leaders), submitted a friend of the court brief in support of Utah and Virginia’s traditional marriage amendments. He states, “This is wrong as a matter of law and morality, and it represents an affront to democracy…In each state, the marriage amendments were passed by the vast majority of the states’ voters, and the laws were struck down by unelected federal judges. The voice of the majority was silenced by appointed judges who hold lifetime appointments.” In reference to his assertion that a majority of voters in the states passed these same-sex banning amendments, he cites how the amendments passed with majorities of 70 percent in Kansas and 78 percent in South Carolina, both states that are likely to be forced into allowing same-sex marriage. In this way, critics of the Supreme Court decision believe such federal actions limit the rights of the states and their citizens.

On the other side, there’s support for the decision from those that believe the federal courts do, in fact, have the right to define marriage. According to US District Judge Timothy Black, “The question is presented whether a state can do what the federal government cannot — i.e., discriminate against same-sex couples . . . simply because the majority of the voters don’t like homosexuality (or at least didn’t in 2004). Under the Constitution of the United States, the answer is no.” According to an ABC News/Washington Post poll of 1006 adults, 56 percent of Americans support the court’s decision earlier this month, compared with 38 percent who oppose it. This support closely resembles support for gay marriage in general, as a May Gallup poll reported that support for same-sex marriage was at an all time high of 55 percent.

On the other side of the coin, are those who support same-sex marriage but were unhappy with the Supreme Court’s decision to allow the appeals courts’ decisions to stand. They argue the Court didn’t go far enough: “The court’s delay in affirming the freedom to marry nationwide prolongs the patchwork of state-to-state discrimination and the harms and indignity that the denial of marriage still inflicts on too many couples in too many places,” said Evan Wolfson, the president of Freedom to Marry. And according to Chad Griffin, president of the Human Rights Campaign, the nation’s largest gay rights organization, “… the complex and discriminatory patchwork of marriage laws that was prolonged today by the Supreme Court is unsustainable. The only acceptable solution is nationwide marriage equality.”

Given the criticism of the Court’s punting of the cases to the appeals courts, it might seem as if the Supreme Court had missed a grand opportunity to finally settle the same-sex marriage argument once and for all. But in actuality, the Court’s decision to abstain from a ruling is the judicious one.

The news that the Supreme Court would not review constitutional decisions from federal appeals courts in Denver, Richmond and Chicago came buried in an 81-page list of cases the justices had rejected, with no explanation or recorded dissent. “There is no way to know why the court did what it did,” said Jim Campbell, a senior attorney for the Alliance Defending Freedom. But, the Court’s reasoning may not be as mysterious as one might think. There are likely several reasons why the Court decided to abstain from making a ruling.

The first possible reason could have been that the conservative justices against same-sex marriage thought they would not be able to overturn the appeals courts’ decisions, and instead, decided to duck a decision. Four votes from justices are needed to grant certiorari to a case in lower court, and although the four conservative justices in the minority in the DOMA ruling (Roberts, Thomas, Alito and Scalia) were probably unhappy with the lower court decision, they knew with the current makeup of the Court (and Justice Kennedy’s unfailing support of gay marriage rights), that a 5-4 loss was in their future.

Another probable reason that the Court has decided to stay away from a ruling relates to two previous Supreme Court cases. The first, not in any chronological order, was the landmark Roe v. Wade (1973) decision. Ginsberg has for years said that the sweeping decision in the case deepened opposition to abortion by making it a national issue, holding that the decision was “too far, too fast.” Ginsberg, along with the other justices, wont be making this mistake again, instead easing their way into a ruling. The second case, Loving v. Virginia (1967), a ruling that struck down state bans on interracial marriage, seems to be what this Court is attempting to emulate. Demonstrating the preference for slower, more incremental change, the justices in this case waited until such bans were essentially relics, confined to 16 states in one area of the country. In much the same way, this Court may hope to make sure the bans on same-sex marriage are relics, or close to it, before they make their decision. This is a pragmatic way to go about things: Most people probably have never heard of Loving v. Virginia, and interracial marriage is almost universally accepted. Roe v. Wade, on the other hand, is infamous, and abortion continues to be a controversial issue. This Court may not want the same fate for same-sex marriage.

The third, and most probable reason for the Court’s non-interventionist stance is that the Court is waiting for a split decision in the circuit courts — a split decision that came on November 6th when the conservative 6th Circuit Court of Appeals upheld same-sex marriage bans in Michigan, Ohio, Kentucky and Tennessee. According to Adam Winkler, a law professor at UCLA law school, before the 2-1 decision by the 6th Circuit Court based in Cincinnati, “The justices were happy to allow this issue to percolate in the lower courts until a circuit split.” Due to the split decision, the Court is more likely to hear the same-sex marriage case and make a sweeping, federal decision on the matter.

Circuit Judge Jeffrey Sutton issued the 42-page decision on the 6th Circuit Court’s ruling. According to Sutton, the appellate judges’ ruling was based on a one-sentence Supreme Court ruling from 1972, which “upheld the right of the people of a state to define marriage as they see it.” He also stated that last year’s DOMA ruling doesn’t negate this ruling from 1972, because the earlier ruling applies to states where gay-marriage is not legal. He concluded by arguing that states, “got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse.” Judge Martha Craig Daughtrey was the dissenting vote in the appellate case. In her dissent, she stated, “If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.”

As a result of the decision in the 6th Circuit Court, a Supreme Court ruling looks more likely than ever. Justice Ruth Bader Ginsberg even stated that “there will be some urgency” for SCOTUS to act if the 6th Circuit rules against gay marriage, but if, for some reason, the court rules for gay marriage, there is “no need for us to rush.” Ginsberg and the Court now have some important decisions to make. If the Supreme Court decides to take the case, they will have to do so by mid-January in order to hear the case by June, in this term. Otherwise, the case would be pushed back to following term and likely not decided upon until June 2016.

Whatever the Court’s justification was thus far, it rightly abstained from ruling on this issue while there was no need to. But that dynamic has changed, and the Court must make some important decisions in the coming months. But if anyone is doubting whether the Court made the right decision in letting the earlier appellate rulings stand, or whether the Court will make the right decision when it comes to this appellate circuit split, just have faith in Ginsberg’s judgment — she’s called the Notorious R.B.G. for a reason.