The Supreme Court's Non-Decision Decision

by Rebecca Mears

published October 17, 2014

On Monday, October 6, the first day of its new term, the United States Supreme Court declined to review seven decisions concerning state bans on same-sex marriage. By denying review, the Court quietly cleared the way for same-sex marriages in Indiana, Wisconsin, Utah, Virginia, and Oklahoma. As a result, same-sex marriage is now legal in 30 states and the District of Columbia.

It took a campaign of thousands of phone calls and door knocks, hundreds of volunteers, and nearly 10 years to help legalize marriage equality in Rhode Island. Policy changes occurring as a result of protests, stickers, slogans, petitions, and demonstrations are familiar. So it is surprising (and perhaps even a bit unsettling) that the Supreme Court could clear the path for same-sex marriage by merely refusing to rule on several cases. In fact, the court may have paved the way for progress more quickly than years of advocacy by simply deciding to make no decision.

But what does this non-action mean? To put it into perspective, consider the way in which the court system functions in the United States. Take a deep breath; the legalese gets lengthy.

All cases start locally. If you take a complaint to court, a general district court or a local trial court will hear your case. If you disagree with the district court’s opinion you have the option to appeal the decision to a higher court. If your case concerns a local issue, your appeal may be taken up by a state appellate court and from there it may move on to your state’s supreme court. If, however, your case involves a federal issue, (any issue involving a federal law, a dispute occurring across state lines, cases involving international concerns, intellectual property issues, or certain issues concerning the United States Constitution) your appeal may be heard by one of the 13 United States Courts of Appeals (also known as circuit courts) which hold jurisdiction over a specific geographic region.
If you are still dissatisfied with the court’s ruling, you may petition that your case be heard by United States Supreme Court by asking for the court to grant you a writ of certiorari. Obviously, this takes some serious commitment and most cases do not make it very far up this chain. In order to grant a writ of certiorari, four of the nine Justices must vote to hear a case, which may explain why the Supreme Court accepts only 100-150 cases of the more than 7,000 cases it is asked to review each year.

If, at any time, your appeal is not taken up, or your writ of certiorari is denied, the decision of the highest court that ruled on your case is the decision that stands.

Finally, this brings us back to October 6. Seven petitions for certiorari regarding the legality of same-sex marriages were brought before the Supreme Court: Bogan v. Baskin (Indiana); Walker v. Wolf (Wisconsin); Herbert v. Kitchen (Utah); McQuigg v. Bostic (Virginia); Rainey v. Bostic (Virginia); Schaefer v. Bostic (Virginia); and Smith v. Bishop (Oklahoma). The Supreme Court declined to review any of these cases, thereby upholding the prior circuit court decisions in these cases, all of which ruled that state bans on same-sex marriage are unconstitutional.

Although in the immediate future this decision to deny certiorari means that same-sex marriages are now, by default, legal in Indiana, Wisconsin, Utah, Virginia, and Oklahoma, the Supreme Court’s decision carries deeper implications as well. The Fourth Circuit, Seventh Circuit, and Tenth Circuit of the United States Courts of Appeals heard the cases above. Due to our judicial system’s reliance on precedent, decisions made by a circuit court are binding within that court’s region unless the Supreme Court rules otherwise. As the Supreme Court, in its refusal to consider these cases, conceded authority to these circuit courts, all states within these regions will have to abide by the ruling that bans on same-sex marriage are unconstitutional and are now obligated to begin issuing marriage licenses to same-sex couples. This means that we can expect to see same-sex marriages legalized in Wyoming,

Kansas, and South Carolina in the upcoming weeks. Already, North Carolina and West Virginia have extended marriage to same-sex couples in light of last Monday’s decision.

The ruling marks another monumental win for same-sex marriage advocates, but this method hardly elicits the feeling of resounding triumph. Taking the above states into account, this would still leave 17 states without legalized same-sex marriage. However, even this number is contested. As wedding bells ring in newly recognized marriages in these states, couples in other states are left in limbo wondering if this decision means anything in states where same-sex marriages are currently banned.

In the Ninth Circuit (which covers much of the west coast), only Arizona and Montana currently do not recognize same-sex marriage, however this too will likely soon change. On October 7, the Ninth Circuit Court of Appeals ruled that same-sex marriage bans in Nevada and Idaho were unconstitutional. After a brief stay issued by Supreme Court Justice Anthony Kennedy in Idaho, the Supreme Court refused Idaho’s request for a further delay of implementation, allowing the previous decision to stand and same-sex marriages to commence. Again, because of the judicial system’s insistence on precedent, Idaho’s ruling will have a domino effect on other states within the Ninth Circuit, as the circuit court and the Supreme Court are likely to treat cases in other states within this region in the same manner. If district courts in Arizona and Montana rule in favor of same-sex marriages, the Ninth Circuit is likely to uphold these rulings and the Supreme Court is unlikely to intervene. Indeed, on Sunday night, a district court in Alaska ruled that banning same-sex marriages is unconstitutional. Although this will be appealed by the state of Alaska and a temporary stay may be issued, the Ninth Circuit Court of Appeals will likely hear the case and waive the stay. All of these formalities are to say, simply, that we can comfortably chalk up another three states in the marriage equality column.

The other 15 states, however, may take more time.

The Fifth Circuit covers Texas, Louisiana, and Mississippi, all states which currently do not recognize same-sex marriages. Proponents are hoping that a recent case in Texas may change this. However even if rulings go as planned same-sex marriage will not be legalized until this winter. On February 26, 2014, a federal judge in Texas ruled in De Leon v. Perry that prohibiting same-sex marriages is unconstitutional. This case, whose ruling, of course, the state appealed, is expected to be heard by the Fifth Circuit Court of Appeals sometime this fall. Similarly, there have been rulings in favor of same-sex marriage within the Sixth Circuit (DeBoer v. Snyder), the Eighth Circuit (Wright v. Arkansas) the Eleventh Circuit (Brenner v. Scott) that are also expected to be heard by courts of appeals this fall.

Although it seems likely that the Fifth, Sixth, Eighth, and Eleventh Circuits will rule that same-sex marriage bans are unconstitutional to ensure consistency in the application of federal law across the country, possibility remains that they may rule in favor of same-sex marriage bans. Indeed, in 2006 the Eighth Circuit upheld a same-sex marriage ban in Nebraska as constitutional in Citizens for Equal Protection et al. v. Bruning. Instances in which circuit courts have different interpretations of the same federal law are known as a “circuit split.” Often a circuit split provides grounds for the Supreme Court to hear a case in order to resolve the split, but simply because a circuit split exists does not necessitate an intervention. Thus, if a circuit split occurs regarding same-sex marriage, the Supreme Court has three options.

The Supreme Court could decide to hear a case coming out of the circuit courts. In this instance, the Supreme Court may take a stance similar to that in Loving v. Virginia and rule that banning same-sex marriage is unconstitutional as it violates the Due Process Clause (that states cannot “deprive any person of life, liberty, or property, without due process of law”) and Equal Protection Clause (that states cannot deny any person “the equal protection of the laws”) of the 14th Amendment. Such a ruling would legalize same-sex marriage in all states. The Supreme Court cannot rule against same-sex marriage by declaring that marriage is constitutionally between a man and a woman, because the United States Constitution does not define marriage, and in United States v. Windsor the Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA), ruling that states (not the federal government) have the responsibility of regulating and defining marriages. Thus the closest the Supreme Court could come to ruling against same-sex marriage would be to deny review.

That being said, the Supreme Court could very well deny review as it did on October 6, and allow a circuit split to stand. Marriage would remain an issue under state purview, which aligns with the court’s decision in United States v. Windsor as mentioned above. Doing so would open a Pandora’s Box of sorts, as same-sex couples in California would be able to marry, but similar couples in Texas would be forbidden from having a wedding of their own. The United States would be a country divided. In North Carolina same-sex couples could enjoy all the benefits that come with a state recognized marriage such as adoption and the right to visit a loved one in the hospital, while a few miles away same-sex couples in South Carolina would not have the same benefits. Couples would be treated unequally based on their choice of residence. This disparate treatment may uproot some same-sex couples from their hometown roots and force a mass exodus of samesex couples from states with no legal recognition of same-sex marriage to states that do.

The third route the Supreme Court could take is to hear a case regarding the Defense of Marriage Act, and, instead of ruling directly on the issue of marriage, strike down Section 2, which holds that states do not have to recognize same-sex marriages performed in other states. The Supreme Court could assert this on the grounds that it violates Article IV of United States Constitution, which holds that full faith and credit of “public Acts, Records, and judicial Proceedings” of one state shall be upheld by all other states. Thus, if a samesex couple gets married in California, this marriage would have to be recognized as legal in North Dakota even if North Dakota itself has banned same-sex marriages. Such a ruling would essentially legalize same-sex marriages in all states, as couples living in states that have banned same-sex marriages would simply have to obtain licenses from another state and return to their home state in order to have a legal marriage. If the Supreme Court decides to rule in this way, it can avoid ruling on the issue of marriage directly while also clearing the way for same-sex marriage to be legalized in all states.

Thus, while the Supreme Court’s decision to deny review on October 6 has directly led to the legalization of marriage in five states, it has opened the door to legalization across the country. As illustrated above, it may take longer for some states to legalize same-sex marriage based on which circuit court holds jurisdiction over the state and whether an appeal regarding a district court decision has already been filed. Yet, based on the recent swiftness by which states have legalized same-sex marriage, and the Supreme Court’s decision not to intervene in the Fourth, Seventh, and Tenth circuits, it is likely that we will see the Supreme Court continue to deny review (so long as a circuit split does not occur), meaning that same-sex marriage will be expanded to all states through the lower courts.