While the Supreme Court’s decision last month not to take up the same‐sex marriage cases that had accumulate over the summer surprised some (but not all), that “decision not to decide” was easily explained by the absence of a conflict in the lower courts. All of the federal courts of appeal to have ruled had held traditional state definitions of marriage to be unconstitutional. As of this past Thursday, however, that’s no longer the case.
In case you’ve been overly focused on the last few days’ other big legal news, the Cincinnati‐based U.S. Court of Appeals for the Sixth Circuit ruled 2–1 in favor of the state marriage laws of Michigan, Ohio, Kentucky, and Tennessee (cases in which Cato filed several briefs). Judge Jeffrey Sutton — whose previous turn in the national spotlight came when he voted to uphold Obamacare’ individual mandate before the Supreme Court got that case — wrote a magisterial opinion rejecting the challengers arguments regarding the Fourteenth Amendment. While I disagree with it for reasons spelled out in Cato’s various briefs, it’s seriously the best possible legal articulation of why states should remain free to restrict marriage licenses to opposite‐sex couples. Sutton’s elegant and well‐crafted opinion, though ultimately wrong, puts to shame many of the opinions that nevertheless correctly struck down state marriage laws — most notably Seventh Circuit Judge Richard Posner’s, which reads like a stream‐of‐consciousness college‐sophomore sociology paper.
And this development wasn’t surprising. The conventional wisdom was that Sutton would be the swing vote on the panel and that he would invoke Baker v Nelson – the Supreme Court’s 1972 dismissal of a gay‐marriage lawsuit “for want of a substantial federal question” — as binding lower courts’ hands notwithstanding Windsor v. United States and other legal developments. Ilya Somin makes an astute observation comparing Sutton’s approach to what he did in the Obamacare case:
Some of the flaws in Sutton’s analysis in the same‐sex marriage case bear a surprising resemblance to those of his most famous previous opinion: his concurrence upholding the Obamacare individual health insurance mandate. In that case, he relied on an idiosyncratic interpretation of the distinction between facial and as‐applied challenges that went against Supreme Court precedent, and was not adopted by any of the other judges who considered the issue on either the Supreme Court or the lower courts (including the many who voted to uphold the mandate on other grounds). Both opinions combine strong rhetorical statements about the humility required of lower court judges – especially when it comes to deferring to the Supreme Court – with neglect or significant misunderstanding of relevant Supreme Court precedent.
The practical question now is whether the cert‐petition process will be completed quickly enough for the Court to consider these cases this term or whether it’s pushed to next fall (meaning a ruling as late as June 2016). Dale Carpenter and Josh Blackman sketch out the twists and turns we can expect, ultimately concluding that it’ll be very close, given that generally only cases the Court takes by early January make it onto the argument calendar for the same term. The challengers will be filing their cert petition(s) this very week, which makes an argument in late April still theoretically possible.
My bet is that Chief Justice Roberts maneuvers behind the scenes in such a way that argument won’t be until next term begins in October but the ruling will come by Christmas 2015. Of course, if Justice Ginsburg retires or is otherwise unable to perform her duties at any point in this process, the case/ruling will be held up, thus setting up a presidential election in which same‐sex marriage figures much more prominently than any we’ve had.