Supreme Court Denies Cert in All Marriage Cases

Today is the official start of the 2014-2015 Supreme Court term and the court started out by surprising everyone — well, me at least — by denying cert petitions from seven states in cases that overturned laws banning interracial marriage (North Carolina, West Virginia, South Carolina, Wyoming, Kansas, Colorado, Indiana and Wisconsin).

By rejecting appeals in cases involving Virginia, Oklahoma, Utah, Wisconsin and Indiana, the court left intact lower-court rulings that struck down bans in those states…

The high court’s decision not to hear the cases was unexpected because most legal experts believed it would want to weigh in on a question of national importance that focuses on whether the U.S. Constitution’s guarantee of equal treatment under the law means gay marriage bans were unlawful.

The issue could still return to the court, but the message sent by the court in declining to hear the matter would be a boost to gay marriage advocates involved in similar litigation in states that still have bans on the books.

That doesn’t mean that they won’t take up the issue later this term and there are many more appeals that are certain to be filed in other states, including Michigan. Justice Ginsburg hinted in an interview recently that the court might not take up these cases until there is a split among the circuits and so far all of the appeals courts have struck down such laws. The 5th or 6th circuits might well buck that trend, though the 5th is a bit more likely. The 6th circuit should be handing down its ruling in several cases any day now, while the 5th will likely be a few months away.

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  • Chiroptera

    The high court’s decision not to hear the cases was unexpected….

    Unexpected, but not a shock, right? I mean, people have been discussing this possibility for months.

  • captainahags

    by denying cert petitions from seven states in cases that overturned laws banning interracial marriage


  • D. C. Sessions

    I’m not surprised. A circuit split would have forced it, but that didn’t happen.

    In the meantime, Team Republican isn’t sure of Kennedy’s vote and without it they’re not about to bet the farm. Similarly for the rest, with the added value that time seems to be on their side.

    As for Kennedy, I suspect he’s waiting for someone, somewhere, to actually present an argument to one of the lower courts that wouldn’t require him to hold his nose and vote “my Party, no matter how patently contrived.”

  • whheydt

    Well….I wasn’t particularly surprised by this. Pleased, yes, but not surprised.

    From what I’ve read, the 6th circuit has the distinct possibility of ruling in favor of the anti-SSM forces. On the other hand, the 9th circuit is considered almost certain to rule in favor of marriage equality in the Nevada and Idaho cases. In the Nevada case, there is no one with standing to appeal (the state dropped its own efforts earlier this year and let a private group handle the circuit appeal that had already been filed by the state), so that one is going to be a done deal.

    My only question is… What happens next? All the cases were stayed while being appealed. Do the stays dissolve automatically? Does some court or other have to formally dissolve the stay?

    This denial has–as I understand it–ramifications for other states within the circuits of these cases. Colorado being a case in point. Those states are affected because these rulings become the “law of the circuit”. What remains is: What has to be done to get marriage equality in those other sates and what is the timing for doing so?

  • Doug Little

    from seven states in cases that overturned laws banning interracial marriage

    I saw what you did there.

  • John Pieret

    What is interesting is that the denial of cert means same-sex marriage will go into effect shortly in Indiana, Wisconsin, Utah, Oklahoma, and Virginia. If they really thought they were going to uphold bans on SSM, why would they allow it to go forward in those states? After all, they could have just let the cert petitions sit there on their calendar and take them up later, when and if the 6th Circuit upholds the ban.

  • jeevmon

    I think this is a bit surprising, insofar as not taking one of these cases now could make it harder to do anything but reverse the first circuit that upholds a state ban. It’s kind of like the Prop 8 situation in California – those same-sex couples in the states where bans on same-sex marriage have been struck down who take advantage of the opportunity to marry would be harmed in a very real and direct way if those bans were later reimposed, as would happen in the states where constitutionally inscribed marriage bans were struck down. Doing that would take away rights and privileges that those couples reasonably believed they were entitled to. That’s a situation that would resonate with Kennedy, and probably assure his vote to reverse the court that upholds a ban.

  • colnago80

    Actually, I predicted this would happen in the absence of a split between the circuits. I will further predict that,in the event that the 5th and 6th circuits uphold the district court decisions so that no split occurs, the SCOTUS will continue to punt on the issue.

    I think that Kennedy is the hold up here. Contrary to Sessions @ #6, I think he really doesn’t want to decide and is hoping that no split occurs, letting him off the hook, thus kicking the can down the road.

    If this scenario works out, I think that whheydt @ #4 has raised the big issue, namely what happens to all the stays that have been put in place. It seems to me that if the SCOTUS is going to punt, they have to remove all the stays currently in place.

  • jeevmon

    colnago80 – it takes four votes to grant cert. I think Roberts also voted against granting cert.

  • David C Brayton

    Told ya. 😉

  • D. C. Sessions

    Colnago80, I agree that he doesn’t want to decide. It’s why he doesn’t want to decide that is interesting.

    On the one hand, he’s a loyal member of Team Republican (see the accounts of what was going on with the PPACA decision.) On the other, he can see that the arguments advanced so far make a vote to uphold bans (especially reversing every single appellate decision to date) a screaming discredit to the Court and to him in particular, given that those decisions were all based on his own precedents.

    With any luck, he’ll be dead and gone before the subject can’t be avoided any longer. Not a bad reason to tilt the electoral field even harder than to date, so that the President and Senate will put another Republican in his place when he dies.

  • pianoman, Heathen & Torontophile

    I’ve still not been forced to marry another man since these bans were overturned. I’m beginning to suspect it was all just hyperbole from the homophobic community.

    Hmmmm… *taps chins with finger*

  • pianoman, Heathen & Torontophile

    EDIT: *taps chin*

    I only have one chin.

  • D. C. Sessions

    I think we’re all agreeing that Kennedy’s cold feet are why the Court denied. Not that his vote tipped it, but that Team Republican wasn’t going to allow it to come before the Court without Kennedy on board in advance.

  • D. C. Sessions

    I only have one chin.

    We believe you.

  • jeevmon

    D.C. Sessions – it takes 6 to deny cert. Kennedy + the four liberal justices still only gets you to five. That’s why I think Roberts was the sixth – he doesn’t have the hate-on for gays the way Scalia does, and he may view not granting cert as a way to avoid the risk of looking like the 21st century Roger Taney for a while longer.

  • Modusoperandi

    D. C. Sessions “We believe you.”

    He does only have one chin. It starts just below his bottom lip and runs all the way down to his taint.

  • D. C. Sessions

    jeevmon, I wouldn’t be the least surprised to see that all of Team Republican voted against cert. In fact, it could well have been unanimous, although for disparate reasons.

    As above, TR wouldn’t want to accept the case if they couldn’t be damned sure of Kennedy.

  • John Pieret

    whheydt @ 4:

    All the cases were stayed while being appealed. Do the stays dissolve automatically?

    I’m no expert on the minutia of SCOTUS practice but I believe they do and the Federal Rules of Procedure require that the Circuit Court of Appeals is to issue a “mandate” (the order or orders requiring someone to do or refrain from doing something) “immediately.” There are some complex delaying tactics the states could try but the folks at SCOTUSblog expect them to go into effect shortly.

    What has to be done to get marriage equality in those other sates and what is the timing for doing so?

    If the states don’t voluntarily accept that there bans are nullified, a suit has to be started and, as soon as the state answers, bring a motion for summary judgment. Should take no more than a few months.

  • John Pieret

    D.C. Sessions @ 18:

    I wouldn’t be the least surprised to see that all of Team Republican voted against cert.

    It only takes 4 justices to grant cert. One or more of the liberal moderate justices would have had to join them .

  • D. C. Sessions

    John Pieret: that’s why I added that the rest of the Court would have had different reasons for denying. One of them might even have done so on principle (gasp!) or perhaps because (as I also mentioned), why gamble when time is on your side? Currently there’s no great upside to deciding immediately and until Kennedy gets off the fence quite a bit of risk.

  • cptdoom

    I can’t see Kennedy ruling for anything but marriage equality when/if the Court hears another case on the subject. They punted on Prop 8, but with the Windsor and Romer decisions, not to mention Lawrence, Kennedy really has laid a pathway that only moves in one direction, as Scalia so eloquently (and angrily) pointed out in his dissents. My guess is that the pro-equality side on the Court did not want to get ahead of the states on the issue when they punted Prop 8, and see no reason to take up the issue now that the Appeals Courts have all ruled so similarly. The anti-equality side knows they can’t win, and don’t want to see a decision ruling LGBT people are a suspect class.

    As I understand it, Windsor could be read both as a states’ rights issue (states control marriage) or an equal protection issue (the 14th Amendment applies to gender and sexual orientation). The Appeals Courts have all taken the 14th Amendment interpretation, and if Kennedy meant something different, he would want to hear a case.

  • vmanis1

    It’s kind of ironic. The anti-equality forces have frequently cited Baker, a 1972 case denying marriage equality, in which the MN appeals court ruled against equality, and SCOTUS denied cert `for want of a substantial federal question’. So far, the circuit appeals courts have unanimously set this ruling aside, citing that `doctrinal developments’ (specifically Romer, Lawrence, and Windsor) render Baker irrelevant.

    So now, let’s suppose that the circuits are unanimous. SCOTUS denies cert now because there really is no question before them, in almost exactly the way they handled Baker but with the exact opposite result!

    By the way, were Scalia a creature of logic, he would have voted against cert for these cases; in his dissent in Lawrence, he said that overturning bans on gay sex would ineluctably lead to marriage equality. He was (as many stopped clocks are) right. That said, I figure him for voting for cert.

  • fifthdentist

    OT, but I found this in my inbox this afternoon, like finding a turd in a pile of leaves. It’s only $99.95 per year. But here it is straight from the horse’s ass:

    Today, we’re excited to announce the Herman Cain Channel! It’s an exclusive, subscriber-only offering we’ve created in partnership with TAPP TV, which is also producing Sarah Palin’s exclusive channel.

    The Herman Cain Channel will give you access to premium features we don’t offer anywhere else, including:

    Herman’s Hangouts: Opportunities for you to join me in special live video hangouts! To join me, all you need to do is subscribe to the channel!

    Exclusive newsmaker interviews: I’ll conduct personally on a weekly basis. In our inaugural week we’ve got U.S. Rep. Tom Price, the author of an outstanding conservative alternative to ObamaCare. Plus, we’re lining up a whole slate of guests that you’ll find insightful and inspiring. And some of them will get the attention of folks all across the country.

    Stuff We Can’t Say on the Radio: Some of what goes on during commercial breaks is simply inappropriate for broadcast. It violates every conventional standard of propriety and would get the PC police very upset! So we wouldn’t dare broadcast it to our subscribers, would we?

  • colnago80

    Re whheydt @ #4

    According to SCOTUSBLOG, all current stays can be lifted immediately by the subject circuits.

  • dukeofomnium

    Is there any actual circuit split? Have any of the DCA’s who’ve considered SSM bans actually upheld them?

  • colnago80

    Re @26


    By the way, officials in Fairfax Co., Va started issuing marriage licenses to same sex couples this afternoon.

  • Modusoperandi

    colnago80 “By the way, officials in Fairfax Co., Va started issuing marriage licenses to same sex couples this afternoon.”

    You don’t know the half of it! This morning I thought I was getting pulled over for failing to signal, but now I have 72 hours to gay marry or the court will issue a warrant!

  • dukeofomnium

    I meant CCAs, not DCAs. This won’t happen again, since I’m cutting off my left hand as a punishment.

  • whheydt

    ABC news has run an analysis peace noting that, denying cert on all these cases sends a signal to the circuits that SCOTUS is pretty much set to uphold marriage equality and then wondering if the circuits (notably 5th and 6th) will pick up that message.

    In some of the recent cases (last year or two) there have been articles suggesting that Roberts is concerned about how history will treat his court and that he may be being leery of creating the next “Dred Scott” case, or–as I’m speculating–the next “Roe v. Wade” case (in the sense of the results being fought over for decades afterwards).

    While my sympathy is with those same-sex couples in the 20 states (19, really, when you look at the Nevada situation) that will be left with no clear, immediate path to marriage equality, that will be small solace to the anti-SSM crowd. They have to know that it’s all over but the shouting, but in a way they have very few ways to substantively complain about.

  • whheydt

    Re: coinago80 @ #27…

    Until the stay is officially lifted, that might be considered “jumping the gun”, but given the most recent statewide election in Virginia, I doubt that the relevant state officials would lift a finger to stop it. Now if that happens in Utah, there might be a bit of a kerfluffle (or perhaps not, given how often the Utah state government has gotten slapped down on this issue already).

    It’s going to be interesting to see what happens in the six states under the four circuits involved that weren’t part of this action. It’ll also be interesting to see what Idaho does when the 9th Circuit hands down its decision. I’d bet that Idaho will file an appeal (always assuming that the 9th goes the way it is expected to) and it will take a few months for SCOTUS to deny cert to them.

  • John Pieret

    Both the Fourth Circuit and Tenth Circuit Courts have put their rulings in into immediate effect.

  • John Pieret

    By the way, the Fourth and Tenth Circuit actions means that bans in Virginia, Utah and Oklahoma are now defunct. Similar bans in West Virginia, North Carolina, South Carolina, Wyoming, Colorado, and Kansas are on life support. State officials in the latter states may attempt to resist but would be risking personal liability for damages if they do, because it would be a clear violation of the Constitution (as determined by the Circuit Courts they are in] and, therefore, they would not be protected by the limited immunity public officials have when acting in good faith.

  • whheydt

    Apparently the Colorado AG has thrown in the towel and ordered county clerks to start issuing marriage licenses to SSM couples, effective immediately.

  • John Pieret

    Apparently the Colorado AG has thrown in the towel

    So has Scott Walker in Wisconsin and various local clerks in Indiana are planning to issue SSM licenses soon, even though Wisconsin and Indiana are in the Seventh Circuit that has yet to formalize its decision. North Carolina’s attorney general has also said it is dropping its defense of the ban.

    On the other side, South Carolina’s Attorney General has said that the state will continue to fight to uphold its ban as has the governor of Wyoming.

  • whheydt

    I can’t say that I’m at all surprised about the actions of South Carolina and Wyoming. I’m mildly surprised about North Carolina. It looks like either common sense and/or financial reality has set in (in the sense of…we can spend the money, but we know we won’t win, so why spend it?).

  • D. C. Sessions

    SC and WY are going to have a very busy time starting approximately tomorrow, when they get their copies of Motions for Summary Judgment. At some point Counsel is going to be asking how much they want to spend on the other sides’ legal bills.

  • otrame

    Meanwhile, I sit here thinking about my friends who have been together more than 10 years and who still can’t get married here in Texas. They have said they will not marry until they can do it here in their home town.

    The fight may be over bar the shouting, but that shouting is still hurting people. I want to attend that wedding before I get too old to enjoy it. Still, this is a good day. I am so happy for all those in other states planning a trip to the registrar soon.

  • DonDueed

    I only have one chin.

    Aha! Now we know pianoman is not Kirk Douglas.

  • colnago80

    Re jeevmon @ #16

    Roberts’ cousin, Jean Podrasky, is a lesbian and has married her partner after the Prop. 8 decision went down.

  • hunter

    John Pieret @ 35: “. . . in the Seventh Circuit that has yet to formalize its decision.” I’m unclear what you mean by this. The 7th Circuit decision, authored by Richard Posner, was blistering in throwing out the state marriage bans. If you mean lifting the stay, Indiana has already started issuing marriage licenses, and Wisconsin is about to follow suit.