海角大神

Thanks to the decisions of the United States Court of Appeals for the Tenth Circuit involving cases out of聽Utah聽andOklahoma, the decision of聽the Fourth Circuit involving a case out of Virginia, and the recent decision by聽the Seventh Circuit聽involving cases out of Indiana and Wisconsin, there are presently now more than four separate cases challenging the constitutionality of state law bans on same-sex marriage making their way to the Supreme Court. As I鈥檝e discussed in the past, there has been much speculation about which way the justices might rule on such a case, whether they would follow the trend of more than two dozen state and federal court decisions striking down such bans, for example, or the example of the district court judge in Louisiana who recently upheld that state鈥檚 ban on same-sex marriage. There has been very little discussion, though, over the question of whether or not the justices would actually take any of these cases up on appeal. They are not required to do so, of course, but given the fact that it only takes the agreement of four justices, the conventional wisdom among most legal analysts has been that either the conservative or the liberal wing of the court would see these cases as their best opportunity for a final resolution of an issue that they have effectively been dancing around the edges of ever since their decision in聽Roemer v. Evans聽in 1996 and continuing through聽Lawrence v. Texas聽and, last year,聽United States v. Windsor.聽Indeed, the assumption among people on both sides of the debate has been the聽the justices would accept at least one of the appeals聽that are now before them. In comments earlier this week, though,聽Justice Ruth Bader Ginsburg poured a bit of cold water on that assumption, and suggested that the key to what the nation鈥檚 highest court might do lies in what happens in the Sixth Circuit Court of Appeals:

You can watch the video of Justice Ginsburg鈥檚 full remarks, which go beyond the issue of same-sex marriage to discuss her legal career and her time on the court,聽at this link.

Lyle Denniston聽comments on what he describes as Justice Ginsburg鈥檚 mixed signals on same-sex marriage:

In essence, Justice Ginsburg is reminding all of us that the court is very selective about the cases that it takes and, especially, when there are not issues regarding the constitutionality of a federal law involved, it often refuses to hear appeals in cases where there is no significant disagreement among the federal circuit courts of appeal. While not a formal rule, the presence of lack of a circuit split is usually a good indicator of whether or not the justices will take up an appeal in a particular manner, with the logic being that if all of the federal circuits that have spoken on the matter are in agreement, there isn鈥檛 any reason at that time for the justices to step into the matter. Obviously, in a case like this, a position like that leaves people who live in areas where the federal courts haven鈥檛 spoken on the matter in a sort of judicial limbo until a case raising these issues makes its way to the court of appeals that covers the area where they live, but it鈥檚 an idea rooted in the restraint that the Supreme Court has typically tried to exercise in these types of situations.

Some who have looked at this issue have recognized the circuit split issue have argued that the court is already presented with such a split based on a decision that was handed down five years before its decision in聽Windsor. In聽Citizens聽for Equal Protection v. Bruning, the Eighth Circuit Court of Appeals rejected an Equal Protection Clause argument in factor of striking down Idaho鈥檚 same-sex marriage ban. If the Justices were looking for a reason to take up one of these cases, then the Eighth Circuit has arguably already provided them with one, although the fact that the decision in that case was handed down before聽Windsor聽arguably reduces its relevance to the legal issues presently before the court. This is why Justice Ginsburg made reference to the Sixth Circuit Court of Appeals.聽That Court heard appeals involving marriage laws in four states聽and at least聽some observers聽believe that the oral argument indicated that the panel that heard the case was sympathetic to the arguments made by the states in favor of those laws. As I noted at the time, a loss at the Sixth Circuit would be something of a psychological blow to the marriage equality movement, but Justice Ginsburg seems to be making clear here that such a ruling at the Sixth Circuit would make it far more likely that the justices would take up the issue of same-sex marriage this term. If the judges on the Sixth Circuit end up following their fellow judges around the nation, though, she鈥檚 suggesting that the justices might let the matter be and let other cases percolate up through the federal courts. In that case, if you support same-sex marriage and you believe, as I do, that the Supreme Court is likely to strike down state law bans, then you ought to hope that the Sixth Circuit rules contrary to the other Courts of Appeal. It will be a setback, but it will move the ball forward in the legal system rather quickly.

Doug Mataconis appears on the Outside the Beltway blog at http://www.outsidethebeltway.com/