Justice Ginsburg Lifts The Curtain On How The Court Might View The Same-Sex Marriage Cases

Justice Ginsburg had some interesting things to say about the same-sex marriage cases headed to the Supreme Court.

Same Sex Marriage Supreme Court

Thanks to the decision’s of the Tenth Circuit involving cases out of Utah and Oklahoma, the decision of the Fourth Circuit involving a case out of Virginia, and the recent decision by the Seventh Circuit involving cases out of Indiana and Wisconsin, there are presently now less than four separate cases challenging the constitutionality of state law bans on same-sex marriage making their way to the Supreme Court. As I’ve 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’s 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 Roemer v. Evans in 1996 and continuing through Lawrence v. Texas and, last year, United States v. Windsor. Indeed, the assumption among people on both sides of the debate has been the the Justices would accept at least one of the appeals that are now before them. In comments earlier this week, though, Justice Ruth Bader Ginsburg poured a bit of cold water on that assumption, and suggested that the key to what the nation’s highest Court might do lies in what happens in the Sixth Circuit Court of Appeals:

MINNEAPOLIS — People seeking clues about how soon the Supreme Court might weigh in on states’ gay marriage bans should pay close attention to the 6th Circuit Court of Appeals, Justice Ruth Bader Ginsburg told a Minnesota audience Tuesday.

Ginsburg said cases pending before the circuit covering Kentucky, Michigan, Ohio and Tennessee would probably play a role in the high court’s timing. She said “there will be some urgency” if that appeals court allows same-sex marriage bans to stand. Such a decision would run contrary to a legal trend favoring gay marriage and force the Supreme Court to step in sooner, she predicted.

She said if the appeals panel falls in line with other rulings there is “no need for us to rush.”

Ginsburg didn’t get into the merits of any particular case or any state’s gay marriage ban, but she marveled at the “remarkable” shift in public perception of same-sex marriage that she attributes to gays and lesbians being more open about their relationships. Same-sex couples can legally wed in 19 states and the District of Columbia. Bans that have been overturned in some other states continue to make their way through the courts.

“Having people close to us who say who they are — that made the attitude change in this country,” Ginsburg said at the University of Minnesota Law School.

The Supreme Court returns from a summer recess in early October. Ginsburg wasn’t the only justice on the lecture circuit Tuesday; Justice Clarence Thomas was addressing a gathering in Tyler, Texas.

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

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

Taken on their own, her remarks could suggest the following:  first, that she — and perhaps other Justices —  are not particularly eager to get involved yet; second, that she and maybe others may not be prepared to vote for review unless there is a division among federal appeals courts; third, that such a division would have to be fresh, because the wave of recent federal appeals courts’ decisions striking down marriage bans does, in fact, conflict with a 2006 decision by the U.S. Court of Appeals for the Eighth Circuit upholding such a ban, which supporters of such bans have been citing to the Court in the new cases; and, fourth, that the Court is well aware of comments by observers who attended a recent hearing before the U.S. Court of Appeals for the Sixth Circuit that the panel had given indications that the outcome could be to uphold one or more bans in the four states involved in that hearing.

There is no timetable for the Sixth Circuit to issue its opinion, but it — like other federal courts in recent months — has been working on those four states’ cases on an expedited schedule.  And there has been no sign that the Sixth Circuit is going to put its review on hold, now that the Supreme Court is moving toward its initial examination of the cases already pending.

If, in fact, the Justices are waiting to see what the Sixth Circuit does, they could simply take no action on the pending petitions, simply putting them off, week to week.

There does not seem any realistic possibility that, absent a new conflict among the appeals courts, the Court will vote to deny review in any or all of the pending cases.  If the Court were to do that, it would open the way for same-sex marriages to begin taking place immediately in those five states, but quickly spreading to other states that are located in the same geographic areas governed by the three appeals courts that so far have struck down bans on such marriages.

The Court, on three occasions since January, has put lower court decisions on the marriage issue on hold, thus at least hinting that it does not want those marriages to start occurring in waves until after it has had a chance to rule on its own.  To deny review now, thus opening the way to thousands of new same-sex marriages, and recognition of many more existing marriages, would run counter to those delaying orders.

It was highly unusual for Justice Ginsburg to raise the curtain on internal considerations that may be at work as the Court approaches its first look at the new round of same-sex marriage cases.   However, several members of the Court, including Justice Ginsburg, in recent years have been much more willing to talk about the Court’s work in public fora, such as televised conversations of the kind that she had Tuesday night in Minnesota.

Until the first orders are issued out of the Justices’ September 29 Conference, it will not become clear whether the Court will take any action then on the controversy.  If, however, the Sixth Circuit should issue a conflicting decision between now and then, it does appear that Justice Ginsburg would expect the Court to grant review, and move ahead promptly.

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 this isn’t 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’t 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’t 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’s 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 Windsor. In Citizens for Equal Protection v. Bruning, the Eighth Circuit Court of Appeals rejected an Equal Protection Clause argument in factor of striking down Idaho’s same-sex marriage ban. If the Justices were looking for a reason to take up one of these cases, then the 8th Circuit has arguably already provided them with one, although the fact that the decision in that case was handed down before Windsor 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. That Court heard appeals involving marriage laws in four states and at least some observers 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 there fellow Judges around the nation, though, she’s 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.

FILED UNDER: Law and the Courts, US Politics, , , , , , , , , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


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  8. OzarkHillbilly says:

    Hmmmmm…. 7 comments and not one of them about the subject of the post. Seems people find spam more interesting than your thoughts on the workings of the Supreme Court, Doug. Almost enuf to give one an inferiority complex. 😉

  9. stonetools says:

    I think JUstice Ginsburg is cautious about proceeding with a sweeping Supreme Court decision holding that SSM is constiutional. She fears instigating a conservative backlash like the Roe vs. Wade decision: a decision that delivered a huge and fervent evangelical Christian population to the Republicans for a generation.
    Now while I think such a backlash is unlikely, I understand her reluctance on this. Justice Sotomayor clearly is ready to proceed, but I think Ginsburg and the liberals are going to “go slow” and aren’t going to be ready to proceed until they are sure that the country is ready for this, maybe sometime around 2020.

  10. OzarkHillbilly says:

    @stonetools: You don’t think she has noticed that the group of anti-abortion people and the group of anti-SSM people are one and the same? Of course, I also don’t understand that criticism of RvW from her either. These people are reactionaries, it is what they do. Time was not going to change that.

  11. stonetools says:

    These people are reactionaries, it is what they do. Time was not going to change that.

    RBG believed that if abortion rights had been introduced more slowly and on a state by state basis, the antiabortion ideologues would have been persauded to see the logic of the abortion rights position. I think (heck I know) RBG is wrong on this, although I applaud her optimism.
    Some liberals have a touching faith in the idea that with time, patience and rational argument, they can convince conservative idealogues to face reality.
    President Obama once believed that. He now knows the truth.

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  14. gVOR08 says:

    @stonetools: Yes, RBG is wrong. Much as I respect RBG, the idea that it would have been better had abortion rights been introduced state by state is pretty much a non sequitur.

    Does everybody remember that Roe v. Wade did not flow from any Democratic policy initiative or liberal movement? That it was a 7-2 decision? That Protestants at the time generally held that life began at birth? That it was not particularly controversial at the time? Why would it have been introduced state by state? Remembering that it did not flow from a legislative initiative, does Ginsburg believe the courts have some mechanism for introducing it state by state?

  15. Eric Florack says:

    @stonetools: so, boiled frog?