Why the justices ducked gay marriage

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The Supreme Court’s inaction on same-sex marriage Monday stunned much of the legal world, but the justices had plenty of reason to duck the hot button issue for now.

A string of lower court rulings against state bans offers both the court’s liberal and conservative wings powerful incentives to steer clear of gay marriage, despite pleas for legal clarity from both sides of the issue.

“There’s been great reluctance on the part of the Supreme Court to take up gay marriage,” said UCLA law professor Adam Winker, who suggested the justices believe the issue could “be resolved satisfactorily without Supreme Court involvement," a principle known as judicial restraint.

With legal battles over gay marriage raging across many states, the court was widely expected to take up one of the more than seven cases that had been pending before it. Instead, the justices declined to hear any of them — and no explanation was offered.

Only four of the nine justices need to vote in favor of taking up a case, so at least six justices decided against it.

Experts say the biggest clue to the justices’ thinking is in the federal circuit courts. To date, all have agreed that the state bans are unconstitutional.

For liberals on the court who favor same-sex marriage, the reason to stay out of the fight could be simply that they’re side is winning in the states. And the inaction on the issue leaves intact lower court rulings striking down the bans in Utah, Virginia, Oklahoma, Wisconsin and Indiana.

“By not taking issue up now, they’re slowly — circuit-by-circuit — getting what they want,” said Steven Schwinn, an associate professor of constitutional law at The John Marshall Law School. “Given that there is not yet a split in the circuit, I am for one not really surprised.”

Justice Ruth Bader Ginsberg hinted at that line of reasoning during a talk last month, when she indicated that there was “no urgency” to take up the issue.

That, she said, would change if the 6th Circuit upholds the state bans, creating a split between appeals courts. 

A three-judge panel on the 6th Circuit heard cases last month on bans in Kentucky, Michigan, Ohio and Tennessee. 

A single circuit court ruling in favor of a state ban, however, would likely force the court’s hand, Schwinn said.

Liberals on the court may also be wary that a ruling in favor of gay marriage before more states had adopted it could stoke a massive negative response akin to the conservative revolt against the 1973 Roe v. Wade decision legalizing abortions, Winkler said.

“Getting too far out in front on same-sex marriage could lead to a backlash,” he said. “I think this on the justices’ minds.”

For the court’s conservatives, taking up the issue may seem like a losing proposition, following last year’s 5-4 ruling striking down the ban on federal benefits for gay married couples. In that case, Justice Anthony Kennedy, a frequent swing vote, not only sided with the court’s liberals, he wrote the majority opinion.

The lack of a single circuit court ruling backing their stance would also work against conservatives, who may prefer to wait for a case they can point to as part of their argument in favor of state bans on same-sex marriage.

Winkler said there is likely an appetite among the court’s most conservative justices to take up the issue.

“[Justices Antonin] Scalia and [Clarence] Thomas might see this as their last chance to stop same-sex marriage,” he said.

But others may see the nation’s steady march toward legalized gay marriage and want to stay out of a fight that could put them on the wrong side of history, Winkler said.

“Even among the conservatives, there’s a sense that same-sex marriage is inevitable,” he said. “Why put their own reputation on the line?”