Monday, October 06, 2014

Why the Supreme Court Denied Cert in the Marriage Cases

Guest Blogger

Craig Konnoth
Over the summer recess, 7 petitions were filed with the Supreme Court seeking to reverse decisions from the Fourth, Seventh, and Tenth that had struck down marriage bans in 5 states.  To many, it came as a “major surprise” when the Court denied all 7 petitions this morning.  With marriage equality becoming law in three circuits, the number of states in which same-sex couples have equal marriage rights will soon jump from 19 to 30
But why did the Court make this surprising move?  The explanation, most Court-watchers agree, lies in remarks by Justice Ginsburg last month, who noted that absent a circuit split, the Court does not usually grant certiorari.  The lack of the split, many have concluded, resulted in the failure to grant cert.  While that is not entirely incorrect, the story is more complicated. 

First, I would argue, there is already a circuit split. In 2006, in Citizens for Equal Protection v. Bruning, the Eighth Circuit upheld Nebraska's constitutional marriage ban.  Admittedly, according to the court’s characterization (slip. op. 5), plaintiffs did not “assert a right to marriage or same-sex unions” in that case, but rather only sought “a level playing field, an equal opportunity to convince the people’s elected representatives that same-sex relationships deserve legal protection,” which a constitutional ban denied them.  The court decided that rational basis scrutiny was applicable to anti-gay laws, afforded the definition of “marriage as the union between one man and one woman…a strong presumption of validity,” and accepted the law’s purported value in “encourage[ing] heterosexual couples to bear and raise children in committed marriage relationships” as satisfying constitutional review.  While the claim in Bruning was slightly different, that case conflicts with the Fourth, Seventh, and Tenth Circuits on at least two grounds.  First, all of these courts reject the procreative rationale that Bruning accepts as rational (the Fourth Circuit, admittedly, only on fundamental rights grounds).  Second, the Seventh Circuit held that the anti-same-sex-marriage regulation triggered strict scrutiny under the Equal Protection Clause.  And the Court was certainly aware of the split—petitioners in the Tenth and Fourth Circuit cases (but not the Seventh Circuit case) both point to Bruning.
Second, I will note that the Court does not necessarily wait on circuit splits to weigh in.  The petition in Hollingsworth v. Perry, for example, had no circuit split to point to apart from Bruning itself (Pet. 17-18). 
Thus, I offer two other hypotheses, with the caveat, of course, that this is, as always, an exercise in tea-leaf reading.
First, the unlikely hypothesis:  6 Justices agree with the rulings below (as it takes only 4 Justices to grant cert). This is highly unlikely. And even if they did, the Court has (admittedly less frequently) taken cases merely to affirm lower courts. In the current context, the interests of judicial economy greatly weigh in favor of taking cert to settle the question:  there are currently 81 cases across 32 states; today’s dismissal resolves the question only in 11 states.
The more likely hypothesis:  some Justices agree with the rulings below, but are wary of forcing the issue, preferring to use their capital (such as it is) on other cases, and letting Windsor do the work in the lower courts for now.  If Windsor proves unequal to the task, and a post-Windsor split arises, that may be a different issue.  Some other Justices disagree with the ruling below, but don't think they have the votes or momentum to overrule absent a recent split. The sum of these Justices equals or is greater than 6.  (Notice that I don’t completely disavow the lack-of-a-circuit-split rationale.  But the relevant circuit split is only a post-Windsor circuit split.)
Accordingly, for the Court to grant cert, we would require, probably, a negative holding at the Sixth Circuit (which had oral arguments recently) or the Fifth Circuit (briefing ongoing) circuits.  If those fail, there could be litigation and appeal in the Eighth Circuit which could vote to uphold Bruning.  The remaining circuits have already ruled or consist of majority Democratic appointees who can force a rehearing en banc if an anti-marriage panel in their Circuit hears the case (Democratic appointees have, so far, proved reliably pro marriage).  A further prediction (which I make with some confidence since few will ever know if it turns out to be correct)—if there is a post-Windsor split, it will be the liberal wing of the Court that votes to grant certiorari.  The conservative wing, I suspect, would prefer to avoid granting certiorari even then—they anticipate, I think correctly, the Justice Kennedy will uphold marriage equality; denying certiorari even if there is a post-Windsor split will ensure that in least some circuits, marriage equality is not realized.  The good news for all sides who want us up at the Court was that, according to some at least, oral arguments at the 6th Circuit didn't seem to go well for marriage advocates—so the story is far from over. 
What is fascinating though, is the cultural shift—by effectively ushering in marriage in 11 additional states, the dismissal (which requires some complicity by the conservative wing of the Court) also suggests that sanctioning same-sex marriage, by itself, is not a sufficiently important question on which to grant cert.  These first signs of the normalization of marriage equality, perhaps, more than a win, may be the real victory. 
Craig J. Konnoth is Sharswood Fellow & Lecturer in Law, University of Pennsylvania Law School. You can reach him by e-mail at ckonnoth at

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