On October 6th, the Supreme Court denied seven petitions for writs of certiorari to review same-sex marriage cases from three Courts of Appeals. In doing so, the Supreme Court refused to interfere with decisions that overturned bans on same-sex marriage in Virginia, Indiana, Wisconsin, Oklahoma, and Utah. The course charted by the Supreme Court allows lower courts to continue to address the issue.
As the Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or the people.” The word marriage does not appear in the Constitution, leading one to conclude that the states can regulate it. However, what does appear in the Bill of Rights is the right to “equal protection of the laws.” Excluding same-sex couples from marriage does not violate the equal protection clause. But tax breaks, estate planning, social welfare benefits, and the marital communication benefit turn marriage into more than simply a social agreement. The lower courts that overturned the ban on same-sex marriage found that because marriage is also a legal institution, banning same-sex couples from the benefits violates the equal protection clause.
Both opponents and supporters of the Supreme Court wanted the Court to grant the petitions. Ed Whelan wrote in the National Review that “The Court’s denial of review in all the pending cases strikes me as grossly irresponsible, as a huge abdication of duty on the part of at least six justices.”. However, the lower courts ruled consistently, giving the Supreme Court no compelling reason to take up the cases. The Supreme Court receives over 10,000 petitions for writs of certiorari yearly and only hears 75-80 oral arguments.
Four justices must agree to grant a writ of certiorari and put a case on the docket. When the justices do not grant a petition, though, they do not make a judgment on the lower court’s ruling. Given the evenly divided nature of the Supreme Court, either the conservative or liberal bloc could have voted to take up the issue. However, it was in the best interest of both groups not to do so.
Allowing marriage equality to spread across the country slowly via lower courts follows the political philosophy of Justice Ruth Ginsburg, famous for criticizing Roe v. Wade as being “too fast, too far.” Should the Court decide to take up the issue in the future, it will be less likely to invalidate the marriages of over 70,000 couples. The conservative justices also have little incentive to take up marriage equality. Considering that Justice Kennedy, the Court’s swing vote, sided with the liberal bloc in United States v. Windsor, the conservative bloc could not be certain they had the votes to decisively rule. Without knowing the likely outcome of the case, the conservative justices did not want to risk a broad ruling.
As same-sex marriage advocates continue to challenge state laws across the country, the Supreme Court can continue to leave the decision up to the Courts of Appeals, assuming they continue to rule consistently. Marriage equality is on the docket twice in the Fifth Circuit, which is considered the nation’s most conservative Court of Appeals. Should the Fifth Circuit rule in opposition to the other Courts, the Supreme Court will be much more likely to get involved. While the Supreme Court seems determined to stay out of the argument as of now, the Fifth Circuit could force their hand and make way for a groundbreaking decision.