Supreme Court takes a pass and lets gay marriages procede

This morning the Supreme Court denied certiorari in seven cases involving gay marriage—letting stand the decisions of the appellate courts which had all held that state bands against gay marriage violate the Equal Protection Clause of the 14th Amendment.  The cases involved five states: Virginia (4^th Cir.), my home state, Indiana (7^th Cir.), Oklahoma (10^th Cir.), Utah (10^th Cir.) and Wisconsin (7^th Cir.). 

The Court’s order immediately ends delay on marriage in those states. In addition, because the case settles the issue of gay marriage in the circuits of the aforementioned states, the states of Colorado (10^th Cir.), Kansas (10^th Cir.), North Carolina (4^th Cir.), South Carolina (4^th Cir.), West Virginia (4^th Cir.) and Wyoming (10^th Cir.) are also affected. By early afternoon, several states had already started issuing marriage licenses to gay couples. With these eleven states, gay marriage is now legal in thirty states and the District of Columbia.

The Supreme Court’s order comes as a surprise to experts and advocates of gay marriage, including myself, who believed that the Court would agree to hear at least one of the cases in order to definitively rule on such an issue of national importance. It takes at least four justices to agree to hear a case before it is docketed for oral argument. There being five justices on the Court regarded as conservative and presumed to be supportive of the conservative agenda—one would have thought that there would have been at least the four votes necessary to hear the case.  What happened?

I offer four reasons. First, Justice Kennedy, often regarded as a swing vote, wrote the majority decision United States v. Windsor (2013) that held the Defense of Marriage Act (DOMA) unconstitutional holding that DOMA was unconstitutional “as a deprivation of the liberty of the person protected by the Fifth Amendment.” So the Court is probably down to a maximum of four votes to hear the case With Kennedy, Ginsburg, Breyer, Sotomayor and Kagan probably voting no.

Second, the same reasoning in Windsor (noted above) would apply to the gay marriage cases. In fact, Justice Scalia said as much in his dissenting opinion in Windsor.  Thus, indirectly, the Supreme Court had essentially already ruled that gay marriage is a protected fundamental right.

Third, there is no split among the circuit courts—the most common reason for the Supreme Court to take a case.

And fourth, perhaps Chief Justice Roberts is concerned about his legacy and did not wish to write an opinion on the wrong side of the national tide strongly in favor gay marriage.

In short, gay marriage's time has come.

The cases are:

     Herbert v. Kitchen (Docket No. 14-124) (Utah)
     Smith v. Bishop (Docket No. 14-136) (Oklahoma)
     Rainey v. Bostic (Docket No. 14-153) (Virginia)
     Schaefer v. Bostic (Docket No. 14-225) (Virginia)
     McQuigg v. Bostic (Docket No. 14-251) (Virginia)
     Bogan v. Baskin (Docket No. 14-277) (Indiana)
     Walker v. Wolf (14-278) (Wisconsin)