March 01, 2015

Advance Sheet: Not to Decide Is to Decide—Sort of

The method behind Supreme Court madness on same-sex marriage.

Robert E. Shapiro

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The decision of the United States Supreme Court last fall not to grant certiorari in several different cases regarding gay marriage came as something of an early surprise during the 2014–2015 term. But a moment’s reflection led many observers to sport a knowing smile and to nod sagely. By not deciding the matter, the Court left standing the decisions of courts of appeals to strike down state statutes banning gay marriage. Although Supreme Court rules caution that a denial of certiorari should not be construed as a substantive decision, the High Court seemed to be saying that it was satisfied with the results below. 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. An elegant solution to a daunting problem.

Elegant, perhaps, but ultimately foolhardy, some might say. Whom did the Court think it was fooling? Hadn’t it merely increased uncertainty by deciding not to decide? And for how long would this approach work? A Supreme Court decision on the question of the constitutionality of statutes prohibiting gay marriage was inevitable, no? Right on cue, just a few weeks later, a Sixth Circuit panel upheld state laws banning gay marriage. See DeBoer v. Snyder, 2014 U.S. App. LEXIS 21191 (6th Cir. Nov. 6, 2014). The resulting split in the circuits needed to be resolved. The Court could not duck the issue permanently, critics argued. Even if it had allowed the division to continue for a time, sooner or later the Court would have had to face the issues presented by gay marriage under the Constitution.

Perhaps. Splits in the circuits are not fatal. Maybe all other courts would have lined up on one side of the issue. Indeed, most did. Other courts of appeals that had not decided the issue could read the tea leaves too, and the Sixth Circuit sitting en banc might have reversed even that court’s contrary rule, recognizing the likely outcome above. If so, the Supreme Court might then have laid the issue to rest without ever having had to opine on it. Whatever temporary uncertainty or confusion there might be in the short term might have been worth it for such a calming result.

Adding to the force of the denial of certiorari, even if it has no precedential value, was what it tells us about the justices’ substantive views on the High Court. We already know a lot. The recent decision striking down the anti-gay marriage provisions of the Defense of Marriage Act, though on different grounds, certainly suggested that the decision would ultimately favor gay marriage. And it should not be forgotten that it takes only four votes to grant certiorari. Apparently, the appeals at the beginning of the term could not even muster that among the so-called conservative wing of the Court.

We cannot know the reason, of course. Those on the Court opposed to gay marriage may not have wanted to hear the case for reasons having little to do with the substantive principles at issue. This could range from not thinking that the cases were the right ones on which to make a stand to believing that more time was necessary to build a coalition in the Court against gay marriage. But the conservatives on this Court have not exactly been reticent or patient. Take for example, the Court’s handling of federal subsidies under the Affordable Care Act. Four justices voted to grant certiorari in a Fourth Circuit case upholding federal subsidies even as a supposed circuit-split was evaporating. See King v. Burwell, 759 F.3d 358 (4th Cir. 2014), cert. granted, 2014 U.S. App. LEXIS 13902 (Nov. 7, 2014). A contrary D.C. Circuit decision had been vacated by that court and set for en banc review, but a group of justices, presumably conservative ones, opted to intervene anyway. Apparently, the momentum developing toward acceptance of the Affordable Care Act was just too great for those opposed to it to sit quietly by.

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