For the six reasons Lyle Denniston describes on SCOTUSblog, the Supreme Court’s announcement on Monday that it would not hear any of the seven petitions striking down same-sex marriage bans was stunning. Even though there was no circuit split, conventional wisdom indicated the Court would decide the issue because of its importance and because both sides asked the Court for review.
Amy Howe also of SCOTUSblog and Scott Michelman writing on SCOTUSblog speculate as to the why the Court’s liberals and conservatives may have decided not to get involved in the issue now. In short, the liberals had nothing to lose by waiting, and both side face uncertainty about Justice Kennedy’s position on the issue.
To understand where were are today with same-sex marriage a timetable is helpful.
- On Sunday, 19 states recognized same-sex marriage.
- On Monday, 11 more states were added from the Fourth (Virginia, West Virginia, North Carolina, and South Carolina) Seventh (Wisconsin and Indiana) and Tenth Circuits (Utah, Oklahoma, Colorado, Kansas, and Wyoming).
- On Tuesday 5 more states were added when the Ninth Circuit (Idaho, Nevada, Alaska, Arizona, and Montana) struck down the Idaho and Nevada same-sex marriage bans. (Implementation of this decision is still being worked out).
Technically, the challenges in the Fourth, Seventh, Tenth, and Ninth Circuits didn’t involve all the states in the circuit with same-sex marriage bans, but the reasoning of the cases applies to all states with bans in each circuit.
The Fifth, Sixth, and Eleventh circuits are still considering cases. Dale Carpenter, writing on SCOTUSblog, points out that all eyes are on the Sixth Circuit because the three judge panel considering the bans includes a liberal, a conservative, and a swing judge, Jeffery Sutton.
If one of these circuits upholds a same-sex marriage ban, Supreme Court review is virtually inevitable. But at that point, the Court will be in an interesting predicament considering same-sex marriages will have been going on in 35 states for months, if not longer.
It is possible, of course, that all circuits will ultimately strike down all same-sex marriage bans making Supreme Court review unnecessary. If that is the Court’s hope it is a somewhat ironic one. At the same time it denied review in the same-sex marriage cases it granted review in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. The issue in this case (before the Supreme Court for the third time) is whether disparate impact claims may be brought under the Fair Housing Act. Eleven Circuits have all held that such claims are viable but the Supreme Court is predicted to rule to the contrary.