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    Family Law Legal Research Blog

    Windsor Update: Not With A Bang, But A Whimper

    Posted by Gale Burns on Wed, Oct 8, 2014 @ 10:10 AM

    The Supreme Court Denies Review of the Fourth and Tenth Circuit Decisions

          The United States Supreme Court has denied without comment the pending petitions for certiorari to review the Fourth and Tenth Circuit decisions holding that federal law requires state to recognize same-sex marriage.

         Since it takes only four votes to grant a petition for certiorari, and Windsor was a 5-4 decision, at least one of the dissenters must have acquiesced in the denial of review.

         From the standpoint of the Windsor majority, the action is not surprising. It effectively recognizes a federal right to same-sex marriage, without forcing the Court to resolve on the record a very contentious social issue. In fact, the majority can claim that it is only acquiescing in a step taken by the great majority of federal judges who have heard the issue, including all Circuit Court decisions to date. Denial of review creates an impression that the argument for a federal right to same-sex marriage has been accepted by so many judges, and is so obviously correct, that the Court need not even take time to address the issue.

          The majority's denial of review does amount to a gamble on the health of Justice Ruth Bader Ginsburg, who has been somewhat dismissive of her own mortality and prone to underestimate the likelihood that President Obama could get a nominee with views similar to her own confirmed in the Senate. The nightmare scenario for supporters of gay marriage is that the Court finally agrees to hear the issue (probably in an appeal from a Circuit Court decision rejecting a federal right to same-sex marriage), Justice Ginsburg then leaves the court, and the court is left with an equal 4-4 split. A Republican president then appoints a conservative justice who breaks the tie by rejecting a federal right to same-sex marriage.

         The issue is more interesting from the viewpoint of the Windsor dissent. The most logical explanation is that the crucial swing vote, Justice Kennedy, was clearly inclined to affirm the Fourth and Tenth Circuit decisions. If the dissenters knew that they were likely to lose, there was no point in pressing to have the issue heard. Indeed, delay raises the possibility that the composition of the Court might change in a way favorable to the dissent's position.

          Another interesting possibility is that Chief Justice Roberts, who is known to be sensitive to the Court's reputation, was reluctant to have the Court take a position that will probably not be viewed well in hindsight. Public opinion favors same-sex marriage, but the margin is growing rapidly and is especially large among young people. Any opinion rejecting a federal right to same-sex marriage could well be viewed by history as the doomed last stand of antigay bigotry. It is understandable that a Justice concerned with the Court's historical reputation would prefer to avoid having the Court issue such an opinion.

         Still another aspect of the denial is whether it will have any effect on the pending Sixth Circuit case. The media reported that oral argument did not go well for proponents of same-sex marriage. But the denial suggests fairly strongly that the Windsor dissenters knew that their position would not command a majority. It may reduce somewhat the likelihood that the Sixth Circuit will take a position different from the Fourth, Seventh, and Tenth Circuits.

         If the Sixth Circuit opinion does reject a federal right to same-sex marriage, there would then be a true Circuit split that the Court would have to resolve. But one can easily see the Windsor majority reasoning that it could address such an opinion when it arises, and that in the short term it is actually a more powerful statement in favor of same-sex marriage to deny review. One can easily see the Windsor dissent reasoning that the possibility of a victory tomorrow, if the composition of the Court changes, is worth more than a defeat today, even if accompanied by a strong dissent. So the Court's denial of review is not illogical.

         The final fate of this issue depends upon how the Sixth Circuit rules. If the Sixth Circuit creates a split, the Supreme Court showdown has merely been postponed. If the Sixth Circuit follows the Fourth, Seventh, and Tenth Circuits, there may not be a showdown at all, and the Court may effectively create a federal right to same-sex marriage simply by consistently refusing to hear appeals arguing otherwise.

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