This is a followup to my earlier article on whether the Supreme Court should grant certiorari in the Gay Marriage cases. In that article I came to the conclusion that they should not. In this article I will explain why they were right in denying certiorari on Monday October 6, 2014. The important factor in this is that in denying review in a case, or cases, the Court is not commenting, or making its decision based on the merits of the case. Instead, the Supreme Court takes cases that provide an opportunity to clarify an area of law, generally (the vast majority of the time, actually) when there has been a split among the lower courts as to the law in question.
There have been many instances where Justices vote to accept a case and affirm the lower court judgment, and some of those affirming votes coming from some who voted to accept the case. But what of this case? The most telling aspect is that no Justice issued an opinion respecting the denial of certiorari. It takes four justices wanting to hear a case for Certiorari to be granted. That means at the very least one of the four solidly conservative Justices (Roberts, Scalia, Thomas, and Alito) voted to deny certiorari and the other three conservative justices silently acquiesced. That I found somewhat odd, given the very public controversy over the subject matter, but then again, not too unusual. It does, however, give me some clues as to what may have been the Justices thinking on the issue.
As I said in the earlier article, the Court's main reason for taking cases is to provide a uniform interpretation of law by reviewing lower court judgments where there is a split in the lower courts on the same issue. In this case there was no circuit split, and I can assume that the Justices paid heed to that fact very carefully. In addition to that I am sure that those who are against the idea of a constitutionally protected right to Gay Marriage had no desire to take a case on that issue and possibly have the Court issue a definitive ruling on it, thus ending the controversy once and for all. This particular Genie would be almost impossible to get back in the bottle, so to speak.
From a tactical standpoint, it makes better sense to avoid such a sweeping result. I also have to believe that they would have been reading the lower court opinions on Gay Marriage, even the ones that were not being challenged in this instance. One that would have stood out was the one authored by Judge Richard Posner of the Seventh Circuit. His opinion was solid and very convincing on the legal questions, and at the same time he forcefully dismantled the arguments of the states who were defending the laws in question. A big issue for any court is its credibility.
That credibility hinges on whether the arguments being made and developed in their opinions hold water. In the face of such logical tours de force as Posner's, it would be difficult to craft an opinion that would garner the publics respect, even among those who support the anti-Gay Marriage laws. I mentioned in the previous article that the Court, and all courts, need to avoid self-inflicted wounds. This issue is tailor made for inflicting a serious wound that would take many years to heal. I am once more convinced that the Court was right in not accepting these cases for review. There was no need to decide an issue in which there was uniformity in the lower courts.
The credibility of the Court could have been brought into serious question, especially if the end result would have been split along purely ideological lines. After the Bush v. Gore debacle in December of 2000, the last thing the Court needs is another case in which almost no one can respect the decisions made. One final comment is needed. In denying review, and thus instantly lifting the stays of the lower court judgments, the Court has made it virtually impossible to take a future case raising the issue of anti-Gay Marriage laws. Suppose they did and ruled definitely that such laws were indeed Constitutional?
The more conservative states in question, especially Utah, would move to once again make such marriages illegal. That would being into question the legitimacy of the marriages already performed. It would create a legal nightmare that would take years to resolve, in addtion to doing serious emotional and legal harm on those who acted in reliance of these current lower court decisions. The Court has in essence made a deft maneuver that allows the trend to move forward, yet keep its hands clean on this political and legal hot potato.
There will be many who are against what the Court has done, and there can be some arguments made to justify that position. But in the end, I believe the Court acted in the manner it did to keep itself from making a serious mistake in the long run, and to let the legal landscape sort itself out, as it has been doing on this issue quite effectively. The Court made the right decision, a decision, as I mentioned, that has nothing to do with the specific merits of the cases.