Back in July, I wrote the following in a piece for Reuters Opinion:
Near the end of his engaging and informative e-book on the Supreme Court’s recent same-sex marriage decisions, To Have and To Uphold, New York Times reporter Adam Liptak makes a prediction: “The day will come when the constitutional question [over the constitutionality of a ban on same-sex marriage] will return to the Supreme Court for some final mopping up, perhaps when the number of states still banning same-sex marriage has dwindled to a score or fewer.”
Though I agree with much of Liptak’s book, I think he’s wrong on this particular prediction: The constitutionality of bans on same-sex marriage will return to the Supreme Court sooner rather than later — and it will happen while more than a score of states still ban the practice. What the court does then is anyone’s guess.
I pressed Adam on this point when he appeared at UCI Law’s 2013 Supreme Court term in review event last summer. I asked Adam with so many cases in the pipeline, how could the Court not take them? Adam’s response was two words: “cert. denied.” In other words, these cases would come up as part of the Supreme Court’s discretionary docket, and that means that the Court could simply decline to hear the cases.
I thought that the Court simply ducking the issue for a while was unlikely when I wrote the piece last July, and I think it even more unlikely now. It takes only four votes to grant a cert. petition, and it is hard for me to imagine Justices Scalia, Thomas and Alito not wanting to take one of the cases coming up, such as the Utah case, in which a federal court held that the state’s ban on same-sex marriage violates both equal protection and due process guarantees, or the Ohio case, where a federal judge indicated he’s quite likely to reach that same result as to Ohio’s law. If lower courts are going to start siding with same-sex marriage proponents, and start legalizing same-sex marriage as a result of court order in places such as conservative Utah, then it seems hard to imagine Scalia, Thomas, and Alito not urging the Court to take the case.
So where’s the fourth vote? I think Adam is right that Kennedy would rather let the issue percolate for a while (witness his convoluted opinion in Windsor not addressing the issue more straightforwardly). But Chief Justice Roberts is a different story. He appears in Windsor to oppose judicial imposition of same sex marriage. That’s where his sympathies are. The question is whether he pulls the trigger or not and votes to take one of these cases. Strategically, he could decide it is better not to vote to take the cases if he thinks, as many thoughtful observers do, that if Kennedy had to decide the issue, he would side with the right to same-sex marriage.
But that same strategic calculation which might lead the Chief not to vote to grant cert. could lead one of the four Court liberals to vote to take the case. That is, they too may want to force Kennedy’s hand, if they are confident in his vote. If it only takes one of the four to join in a vote for cert., I think it is pretty likely to happen. The way it might not happen happen is if Alito, Scalia and Thomas all decide to vote strategically not to hear these cases. I’m guessing they won’t be able to resist.
We may get a sense of all of this in a few days when the Court will rule on the request for a stay in the Utah case. The issue will go to Justice Sotomayor, and if she does not issue a stay herself, it will get referred to the whole Court. We may get some statements from the Justices with respect to granting a stay.
It is fairly likely that the Court grants a stay to keep the status quo as things progress in the 10th Circuit. That will buy the Court some time. But not that much. I expect within a year or two this case or another will make it to the Court in a way that leads the Court to decide the same-sex marriage issue on the merits. There are just too many questions, and so much litigation, for the Court to avoid the merits for too long.