The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Supreme Court was asked to consider petitions for certiorari in seven separate cases challenging state laws barring legal recognition of same-sex marriage. On Monday morning, SCOTUSBlog reported, the Supreme Court denied all seven petitions.
Most commentators have assumed the Supreme Court would take one or more of these cases and (perhaps) conclusively determine whether the federal Constitution bars states from refusing to recognize same-sex marriages under state law. Yet all seven cases below had come out the same way. In all seven, lower courts struck down the challenged state laws, so there was no circuit split.
Given the lack of a split, I do not think it is at all surprising that the court denied these petitions. (Indeed, coincidentally, I was planning on writing a post raising doubts about when and whether the court would take on a same-sex marriage case.) There are several more cases pending in lower courts, including some in which there are reasons to suspect the states will prevail. If so, the court will have a split to resolve, making a grant a sure thing. If not, and same-sex marriage advocates run the table, the court can avoid resolving the issue.
Of course, on this issue, the real question is what Justice Anthony Kennedy thinks. Is he ready and willing to hold that the Constitution guarantees a right to same-sex marriage? Or is he still conflicted given his federalist sympathies? This may ultimately determine when or whether the court takes a case challenging a state prohibition on same-sex marriage and how such a case is resolved.
SECOND UPDATE: It's worth remembering that Justice Ginsburg remarked last month that there was "no urgency" to taking a same-sex marriage case. At the time she noted that some circuits, such as the U.S. Court of Appeals for the Sixth Circuit, had yet to rule. As Dale Carpenter reported here, there is some reason to think the Sixth Circuit might well uphold the challenged state laws barring recognition of same-sex marriages, even if on particularly narrow grounds. That case was argued in August, and an opinion is likely in the next several weeks.
STILL MORE: Lyle Denniston explains here why most observers expected the Court to grant at least one of the petitions.