This morning, to the surprise of just about every observer, the Supreme Court declined to review seven lower-court rulings that had re-defined marriage. For all intents and purposes, this non-decision really gives the green light to lower courts to strike down every democratically-enacted state law that defines marriage in the traditional way.
To understand how significant this surrender is, some basic background information is necessary.
Since the Supreme Court struck down the federal Defense of Marriage Act in June 2013, there has been a virtually-unbroken string of lower-court decisions invalidating state marriage laws. Three of the federal Circuit Courts of Appeals had already struck down laws in several states. Four other Circuit Courts have similar cases before them but haven’t issued decisions yet. When you take all these cases into account, the laws of as many as sixteen states were at issue.
Petitions were filed in the Supreme Court in which all the parties to the seven lower-court decisions — both the defenders of the marriage laws and those seeking to overturn them — had asked the Court to make a final ruling on the issue. For the Court to agree to hear a case, only four Justices need to assent to the petition (technically called a petition for a “writ of certiorari”).
Rule 10 of the Supreme Court’s rules states:
Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the Court considers… (c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court.
You also have to understand something of the self-image of the Supreme Court, who seem to believe that they have been appointed to be Platonic Guardians over our society. Recall this gaseous emanation from the penumbras of the Supreme Court’s collective consciousness, in the plurality opinion in Planned Parenthood v. Casey:
Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.
Now, it’s hard to imagine a more contentious controversy than the debate over the definition of marriage, or a more “important question of federal law that has not been, but should be, settled by this Court”. The argument has raged since the late 1990’s, and it has been fought out in a series of state ballot initiatives and constitutional amendments, legislative battles, court cases, and political campaigns. The Supreme Court itself created the current legal chaos and uncertainty with its decision in the Windsor case, which was mis-used by federal judges to strike down state marriage laws. One would have thought that now was the time for this matter to be addressed by the Court itself, in its self-anointed role to”call the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution”.
Yet the Court declined even to consider the cases. No briefs to be filed. No oral arguments. No further discussion among the Justices. There weren’t even four Justices who thought it was ripe for decision — not even the vaunted supposedly-conservative wing of the court (Chief Justice Roberts, and Justices Scalia, Thomas, and Alito). Even though anyone can foresee the consequences of not taking the cases — namely, sending a signal to the lower courts that it was open season on state marriage laws. We can now expect more lower courts to follow the Supreme Court’s lead, and the dominoes will continue to fall.
The most disappointing part of this non-decision is that not a single Justice thought it was worth writing a dissenting opinion. Perhaps they should just raise a white flag over the Supreme Court building today.
So, by not agreeing to decide any of these cases, the Supreme Court actually issued a momentous decision, and effectively re-defined marriage in the entire United States, without giving the defenders of marriage their day in Court. This is how democracy no longer works around here. Thus is marriage redefined in the United States, not with a bang but with a whimper.