No Action on Same-Sex Marriage Cases

No Action on Same-Sex Marriage Cases January 13, 2015

The Supreme Court was expected to announce whether they would hear appeals of several cases involving state same-sex marriage bans on Monday, when they release the week’s orders, but they chose not to do so. It’s not clear that they discussed those cases at all at last Friday’s conference, but they’re now scheduled to do so this Friday.

The Justices have a private Conference scheduled for Friday of this week, and the other cases, from the Sixth Circuit, may be considered then. A final word on that scheduling may come before the end of the day Monday.

Since the Court refused on October 6 to grant review of the first round of same-sex marriage appeals to reach it after a wave of federal and state court rulings over an eighteen-month span, a split developed when the Sixth Circuit in early November upheld the bans in Kentucky, Michigan, Ohio, and Tennessee, leading to a second round of appeals to the Justices.

Together, those four new cases raise the questions of both state power to prohibit same-sex marriages at all and the state power to refuse to recognize same-sex marriages performed elsewhere. Among the four new cases, the Kentucky case raises both questions, while the cases from the three others raise one of the two questions. The Court has the option of granting one or more of the cases or of denying all of them — an unlikely prospect, in view of the direct conflict among lower court rulings.

If the Court were to take on the issue, it probably would schedule a hearing for the final argument session of the year, in late April. A final decision could come before the summer recess.

It is widely believed that the fact that the 6th Circuit Court of Appeals upheld state bans on same-sex marriage, becoming the first to do so after several circuits overturned them, all but guarantees that the Supreme Court will take up the issue. If they do, it should be announced next Monday. I think they’ll take them, both because of the circuit split and because they will want to avoid putting it off for a year and then issuing a ruling in the middle of a presidential campaign. I still expect the court to overturn all such state laws at the end of June this year.

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  • whheydt

    Some of the justices might *want* to issue a ruling in the middle of a presidential campaign. You know…to rouse the base.

  • colnago80

    This has not been mentioned elsewhere but they could send the 6th Circuit case back for further hearings, hoping that a different trio would hear the case there.

  • Michael Heath

    whheydt writes:

    Some of the justices might *want* to issue a ruling in the middle of a presidential campaign. You know…to rouse the base.

    Could you elaborate?

    The only way I see a set of justices wanting to “rouse the base”, would be for the conservative justices to strike down state bans on gay marriage. That would certainly rouse the base, but I don’t see any of the five conservatives motivated to do that.

    Instead I see Justices Thomas, Alito, and Scalia committed to fucking gay people and their families over, so they don’t seem posed to do what you describe. I doubt J. Kennedy’s motivation would be to “rouse the base”; common wisdom argues he’s instead focusing on his legacy.

    I don’t where C.J. Robert’s head’s at on this issue though his commitment to screwing black people over the equal protection of their voting rights suggests he’s committed to joining the J. Thomas et. al.

    I’m also confident that the non-conservative justices will vote to strike down gay marriage bans and therefore wouldn’t do the opposite merely to “rouse the [liberal] base” for the ’16 campaign season.

  • John Pieret

    In other news, a Federal District court judge struck down South Dakota’s SSM ban:

    The four Circuits which have yet to rule on SSM, the 1st, 5th, 8th and 11th all have cases in the pipeline. It is a possibility (though I don’t think it’s a strong one) that SCOTUS will delay its hearing and decision to early next term (Oct.-Dec.. 2015) to give the rest of the Circuits a chance to rule first.

  • tvoyumat

    Is there *any* chance that people could fucking *stop* saying “Gay Marriage? Some of us are *not* “Gay”.

    I myself am Transgender, MtF, and Bisexual, and I’m *really* tired of cis-G’s & L’s erasing my existence.

  • garnetstar

    Justice Kennedy probably needs more time to polish his prose in what he knows will be the decision that he will go down in history for.

  • gshelley

    What are their options? If they want to avoid making a decision, can they send it back? Could they instruct the court to take some extra factor into account (or say that a precedent no longer holds), or must they actually take the case in order to do that?

    Can they send it back for review by the full circuit?

    I am not entirely convinced Alito is with Scalia and Thomas on this one. those two seem to stand apart in their bigotry, and have been the two who did want to hear other cases that have been up recently (or at least the two that decided to reveal their dissent from the majority)

  • eric

    I think the smart money is on 5-4 (in favor of SSM), but I’m going to be slightly bolder and predict 6-3 (in favor of SSM), with Roberts deciding to go with the majority because he’s concerned about how he’s remembered by hisory.

  • eric

    @7: I think the fact that they didn’t take the cases in “round 1” is a decent indication that Alito (and even Roberts) is philosophically with Scalia and Thomas on this one. If there were 6 or 7 justices honestly in support of it, I think they would’ve taken the earlier cases. As I said above, I think Roberts might flip, but not because he really thinks anti-SSM laws are unconstitutional.

  • gshelley

    Yeah, I think that if they were confident of victory, they’d have taken it, but for the most recent appeals (since the 6th decision), Scalia and Thomas have actually come out and said they disagreed with the decision not to take it. Which might suggest they think they can get 5, or it might have some other meaning

  • Kevin Kehres

    6-3. That’s my story and I’m sticking to it. Scalia, Alito, Thomas dissenting.

  • John Pieret

    gshelley @ 7:

    What are their options? If they want to avoid making a decision, can they send it back?

    One thing they can do is “relist” it indefinitely. They relist a case when they do what they did this week, schedule it for a future conference. They have, in the past, relisted cases throughout one term into the next. Another is that they could instruct the parties to brief some issue of law, which would, effectively, send it into next term, since if they don’t grant grant cert. by the end of January it can’t be scheduled for a hearing by the end of April, when oral arguments end. Then it has to go to next term beginning in October.

    I’m not certain of it, but I don’t think the Supreme Court can send a case decided by a three judge panel back to the Circuit for en banc consideration.

  • colnago80

    Re John Pieret @ #12

    I don’t know about an en banc hearing but they can certainly send the case back to the 6th Circuit for a rehearing if they conclude that it didn’t take certain issues into account.

  • whheydt

    Re: John Pieret @ #12…

    Can they send a case back for “reconsideration” to a appeals court, and (maybe) cite some reason for doing so (like…All of your colleagues found differently and we didn’t take the appeals from them, so get a clue)? Or are there procedural ways to send a case back down without hearing it?

  • John Pieret

    colnago80 & whheydt:

    I’m certainly no expert on the minutia of SCOTUS practice but, yes, appellate courts can always send cases back to lower courts for further hearings on factual questions but then they usually go back to the trial court level, not the intermediate appellate court. Also, the high court usually has to agree to hear the case before it can do that, not that it would be a problem for SCOTUS if it was just intent on a delay. The intermediate appellate court usually* only considers questions of law, which the highest court can do itself without sending it back to the intermediate court for any further review. So, no, generally, cases are not sent back to the intermediate to give them a chance to get the law right.


    *My state, NY, is something of an exception, where the intermediate appellate court can make factual determinations but only on the record developed by the trial court. If new facts need to be developed by a further trial or hearings, it has to go back to the trial court. (Sorry if that was more information than you needed to know.)

  • whheydt

    Re: John Pieret @ #15…

    That was both interesting and enlightening. Thanks for posting that data.

  • dingojack

    tvoyumat – personally, I prefer ‘marriage equality’ as it focuses on the actual issue in question.


  • colnago80

    Re John Pieret @ #15

    If, in fact, the SCOTUS is trying to duck the issue for the time being and kick it down the road, they could send it back to the appellate court for a rehearing with the claim that the precedent cited is no longer applicable. Basically, they can do anything they want to do as who is going to say no?

  • tvoyumat


    I like that, too. Thanx.

  • John Pieret


    Yes, they could grant cert., rule that Baker is no longer good law, and send it back to the 6th Circuit to reconsider in the light of that ruling. But why? Baker and the argument that Federal courts have no jurisdiction over state domestic relations law (despite Loving v. Virginia) is the only thing close to a rational basis for denial of marriage equality. If SCOTUS cuts the legs out from under that, the game is completely over. [Shrug] I suppose it could happen that way … if the court wanted to demonstrate its appreciation of Machiavelli,

  • whheydt

    Re: John Pieret @ #20…

    Well…it would be a way to “decide” the issue without actually deciding it.

    I get the feeling that the court is looking over its collective shoulder at oe v. Wade and trying to keep their (either collective or John Roberts) name off another “third rail” issue. It won’t work, of course, they’ll just be known as a court that was too scared of an issue to face it head on and deal with it.

  • colnago80

    Re John Pieret @ #20

    But all the other appellate courts, that have ruled, have said that Baker has been superseded by the SCOTUS previous ruling on the DOMA case. If my hypothesis is correct, that the court is avoiding ruling on the issue, sending it back would be the logical step. That would be sending a message to the 6th Circuit to get with the program.