As noted in my first post following the Supreme Court's action today, just yesterday afternoon at a party I talked about the options of what the U.S. Supreme Court might do. One option was what the Court ultimately ended up doing: denying the appeals, allowing same sex marriage spread to the states directly involved and then to the other states within the 4th, 7th and 10th Circuits. When asked why the Court might do so, I said there were a number of possible factors. Ari Ezra Waldman lays them out quite well over at Towleroad. Here are highlights:
Follow me for one possible explanation for how and why this happened.
There is now marriage equality in 24 states plus the District of Columbia. Marriage equality will soon come to 6 more states, from South Carolina to Wyoming, because those states are covered by the circuit court decisions that are now the final words on marriage equality in those jurisdictions. That is 60 percent of the states.
Twenty states will remain in a rump anti-equality dystopia. That number is special because it is quite close to the number of states (17) that still had bans on interracial marriage on their books when the Supreme Court decided Loving v. Virginia. That case declared all such bans unconstitutional. It reflected the views of the vast majority of the federal courts through the country. It reflected the views of the majority of Americans. It was fiercely opposed, especially in those 17 states in the South, but the notion that a state could ban blacks from marrying whites is so disgusting today that it is hard to believe even 17 banned the practice.
Before it took Loving, the Court waited. It had the opportunity to hear similar cases several times before jumping on the Loving bandwagon. It could have been because of the apt name; it could have been because some justices were waiting for a liberal majority. More likely, it was strategists on the Court waiting for the right case at the right time, when fewer and fewer states retained the bans. At that point, the country would be ready.
Today, the Court helped us along that road. Soon, marriage equality will become a non-issue. It already sort of is.
Put yourself in the shoes of one of the Supreme Court's conservatives. Let's say, Justice Scalia. Let's assume that Justice Scalia opposes extending the constitutional right to marry to gay persons. Here's what you know: You know you have four pro-equality justices against you. You have to know that Justice Kennedy is in their corner, too. So, you realize you have two options: Take the case and have five justices enshrine a federal marriage equality right in the constitution, or do not take the cases and swallow the lower court decisions. You hate the first option. The second option is somewhat better. At least, it keeps the case out of the Supreme Court.
Conservatives like Scalia and Thomas do not want to touch marriage equality at the Supreme Court. Not only do they not want to lose, but they hate the idea of more federal rights, in general. Conservative jurisprudence is all about narrowing the federal Constitution, keeping people out, and letting legislatures answer problems. A federal appellate court saying gays have a federally protected right is bad enough. The Supreme Court saying the same thing is so much worse because it federalizes a right that Scalia doesn't think is there. So, if you're stuck with three circuits that have already rejected bans on gays marrying under the federal Constitution, you might as well let them stand with a simple denial without letting the Supreme Court "expand" the text of the Constitution. That might explain why the conservatives didn't want to take the cases.
Now, imagine yourself in the shoes of a moderate like Stephen Breyer. You're cautious and approach your job with "judicial humility." You may not think the country is ready for a nation-wide right to marry for gay couples. You may want to hear from more courts, appellate or district, and more state legislatures. You may want to wait to take a case until you absolutely have to, i.e., when you have an appellate court decision upholding the constitutionality of a ban.
And, finally, imagine yourself in the shoes of a progressive justice like Ruth Bader Ginsburg. You have strong ideas about equality. Whenever the Supreme Court acts, you want it to be a lasting decision that will never erode and not face a backlash. You also do not feel compelled to take these particular cases because you agree with what happened below. You are comfortable waiting for the right time because you are not satisfied with a five justice majority. You want at least six. You realize that Justices Scalia and Thomas are lost causes. But you think that Chief Justice Roberts, a young man, is not going to be willing to oppose marriage equality and sit on a court for twenty more years. At that time, marriage equality will be as obvious as sliced bread. You want to build support from the ground up to peel off at least one more vote for marriage equality, and you're willing to wait to attack with overwhelming force.
Seen in this way, it is possible every justice voted against hearing these cases, but for different reasons.
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