SCOTUS Denies Cert, World Denies Uncertainty

Why are so many other observers acting as though the Court just handed the LGBT community a gift box of equal rights, neatly wrapped in denied cert petitions?

After the U.S. Supreme Court denied the petitions for certiorari in several leading same-sex marriage cases this week, media coverage exploded with headlines like “Legal Argument Over Gay Marriage Is All But Over.”  Advocates of LGBT rights seemed to view all future court action as a mere victory lap.  Sarah Warbelow, the legal director for the Human Rights Campaign, told the press, “It’s really hard to imagine the Supreme Court would have allowed thousands of same-sex couples to get married, including in some very conservative areas like Utah, and then turn around and say, ‘Just kidding, there’s nothing wrong with state bans.'”

Warbelow deserves some slack for her sanguine interpretation of this week’s news.  After all, she has a cause to promote.  And as a general rule, when SCOTUS declines to hear a case on a particular question, one might reasonably assume that they aren’t concerned with correcting the lower court’s treatment of the issue.  But this is hardly a routine legal matter.  Nothing emanating from First Street this week made the fate of same-sex marriage in America certain.  So, why are so many other observers acting as though the Court just handed the LGBT community a gift box of equal rights, neatly wrapped in denied cert petitions?  Why is there so much denial about what these cert denials mean?

Perhaps the over-confidence following the Court’s action this week is an attempt to make the Court’s action look like a victory for liberal justices and their political allies.  Of course, waiting for a growing tide of states and courts to adopt same-sex marriage without Supreme Court intervention does plenty of good for the cause.  It will bolster the argument that there is a consensus among the majority of jurisdictions when the question eventually comes before the Court.  In the meantime, gay men and lesbians can continue to marry in much of the country.

Nevertheless, the cert denials were not the victory for gay rights activists or liberal justices that many observers have claimed.  While the circuit decisions below now remain in place, future challenges may change that status – hardly the comfort I would wish for if I were in a same-sex marriage.  Moreover, denying cert this week did nothing to directly improve the treatment of same-sex couples married in one state but living (or attempting to divorce) in another.  Again, for those folks, cautious optimism about what the Court will decide in the future is still cautious . . . in the future.

This week’s cert denials do not signal a defeat of conservatives either.  Why would conservatives on the Court want to hear any of these cases now, without a circuit split?  So far, no circuit has upheld a state’s ban.  Yet, there’s plenty of reason to anticipate that at least one will soon.

People who doubt a circuit split will emerge ought to cast their eyes down south.  In the Fifth Circuit, the likelihood of an appeals court upholding a state ban is high.  Earlier this year, U.S. District Judge Orlando Garcia struck down the 2005 Texas constitutional amendment banning same-sex marriage.  But in September, Judge Martin Feldman upheld Louisiana’s law.  Judge Feldman’s district court opinion in Robicheaux v. Caldwell does a yeoman’s job of laying out the argument that many conservatives have yearned to see articulated by a court.

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The Fifth Circuit is unafraid to veer right.  For example, this week, the circuit denied a petition for rehearing en banc in Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, permitting the state of Texas to implement controversial portions of HB 2, the law regulating abortion clinics.  This week, however, only three judges on the Fifth voted in favor of rehearing.  If any circuit would swim against the tide of courts finding a constitutional right to same-sex marriage, it’s the Fifth.

Notice too that this week’s cert denials are not conservative defeats, if only because there is no singular, monolithic conservative stance on same-sex marriage.  Within the conservative movement, there is a diversity of opinions regarding same-sex marriage.  A non-negligible portion of the Right consists of libertarians — and even a growing number of more traditional conservatives — who endorse legal recognition of these relationships.  Some of us celebrate statutory provisions for same-sex marriage but resist the creation of a constitutional right via the expansion of Equal Protection jurisprudence.  Others argue that the bans amount to improper gender discrimination, without reference to gays and lesbians constituting their own protected class.  Some conservatives want SCOTUS to avoid the issue because family law questions have historically been reserved for states.  Some want SCOTUS to hear the issue in order to tamp down threats to the religious freedom of employers who object to homosexuality. Treating any move by the Court as a simplistic win or loss for conservatives does violence to the genuine diversity of views within a large swath of legal and political thought.  Many of the nuanced views held by members of the Right are not offended in the slightest by the Court’s actions this week.

This not only shows that it’s wrong to cast this week’s events as purely political, but also just how much what we still don’t know should interest everyone.  The way in which the Court ultimately decides the issue is every bit as important as whether, in the end, gay and lesbian couples can get marriage licenses.  Precisely which right is violated?  What level of scrutiny applies?  If the Court bases its decision on sexual orientation as a protected class, then that precedent will arm gay rights advocates fighting for equality in other areas of law.  The sequence of legal steps used to arrive at this conclusion affects how courts will treat future plaintiffs claiming novel rights under the law.  Beyond a binary “yes or no” outcome, the Court’s eventual rationale will have enormous consequences for both sides.  Method matters.  And right now, the Court’s method remains uncertain.

If there was a clear consensus among at least five members of the Court on how to decide the issue, one or more of this week’s petitions would now be calendared for arguments.  By opting not to do so, SCOTUS signalled little more than uncertainty.  Maybe this uncertainty is limited to particular details – the optics of sweeping constitutional change, dithering over the best vehicle for deciding the issue.  None of the cases on which the Court denied cert this week were flawed vehicles in the conventional sense – no procedural defects, fact-bound error correction, etc.  But perhaps they were, in a sense, too perfect.  Peripheral issues, such as standing in earlier same-sex marriage cases Hollingsworth v. Perry and U.S. v. Windsor, offer a potential way out if consensus on the merits question doesn’t coalesce after the Court agrees to hear a case.  By finding that the defenders of traditional marriage in Hollingsworth lacked standing, an uneasy Court avoided a question it was not then ready to answer.  Ordinarily, SCOTUS would try to avoid a case muddied by potential defects.  But with a contentious matter like same-sex marriage, the justices might be looking for a little wiggle room.  If so, the members of the Court may be among the few this week who do not seem certain what the Supreme Court will do with same-sex marriage.


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Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.