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 law.upenn.edu