September 01, 2015 Litigation

Not to Decide Is to Decide—Sort Of

Robert E. Shapiro

The decision of the U.S. Supreme Court in fall 2014 not to grant certiorari in several different cases regarding gay marriage came as something of an early surprise during the 2014–2015 term. By not deciding the matter, the Court left standing the decisions of courts of appeals to strike down state statutes banning gay marriage. By not deciding the matter, the Court had, practically speaking, decided it. But it had done so with what might be called “plausible deniability,” keeping itself removed from the storm of public debate.

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