The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
For the past couple of days, SCOTUSblog has been hosting an online symposium on the denial of seven certiorari petitions dealing with same-sex marriage. The Court's (in)action on Monday raises a host of constitutional questions, both substantive and strategic, which are being addressed by contributors. Here's a brief summary of each essay so far:
*Suzanne Goldberg celebrates the spread of same-sex marriage to new states but emphasizes the harm of delay for thousands of gay couples and their children across the country living in states that still forbid recognition.
*Neil Siegel analyzes the cert denials as a form of persuading rather than coercing lower courts to strike down same-sex marriage bans, a "passive virtue" (Alexander Bickel's phrase) that the Court adopts in times of constitutional transition.
*Bill Eskridge argues that the denial was a "deliberation-forcing" decision that will enhance the legitimacy of the final result: nationwide same-sex marriage. By the time the Court reenters the fray "each state would have had an opportunity to deliberate about the issue and learn from the experience of other states."
*Scott Michelman speculates about why there weren't four votes to take up the cases. "With no camp assured of victory if the court decided to hear the cases, the uncertainty may hold the key to the Justices' thinking."
*John Nieman suggests that the Court's single-sentence denial of the states' petitions may be the perfect book-end to its single-sentence denial of the first same-sex marriage claim in 1972: "With forty years of hindsight, the Court's one-liner saying effectively nothing in Baker v. Nelson comes off as prudent and wise. Maybe forty years from now, our children will say the same thing about the six orders the Court gave us on Monday."
*Robin Wilson provides a fascinating set of maps setting out the overlay of same-sex marriage, state religiosity, and protections for religious freedom. She adds up the costs of judicial delay to same-sex couples and the costs to religious traditionalists of judicial action unaccompanied by specific religious-freedom protections.
*Finally, I address what I call Judge Jeffrey Sutton's "trilemma." Sutton, the perceived swing vote on the Sixth Circuit, the next appeals court at bat on same-sex marriage, is now very much the center of attention. "The Sixth Circuit, depending on Sutton's vote, could be the court to create the urgency that causes the Supreme Court to hear the matter sooner (perhaps still this Term) rather than later," I argue. That would happen if the Sixth Circuit reverses the district court decisions striking down anti-SSM laws in Ohio, Kentucky, Michigan, and Tennessee. On the other hand, he could vote to affirm the decisions, shifting attention to the remaining circuit courts (the 5th, 8th, and 11th).
The relatively painless resolution Sutton seemed to favor at oral argument on August 6, ruling that the one-sentence rejection of a same-sex marriage case in 1972's Baker v. Nelson still binds the lower courts, has lost considerable appeal in just the last two months. Sutton will likely want to make a substantive decision affirming or reversing on the merits of the constitutional claims.
While the Sixth Circuit has a third option-sit and wait for another appeals court to act-I doubt it will do that. There's some editing, updated citations, re-circulation among the judges, and perhaps rethinking that need to go into a draft opinion at this point. I'd expect a decision within the next few weeks.