Supreme Court Declines Review Of Rulings Allowing Same-Sex Marriage

By failing to act, the Supreme Court has effectively legalized same-sex marriage in eleven more states.

Same Sex Marriage Supreme Court

In a somewhat surprising move, the Supreme Court has denied the appeals that were filed in all of the same-sex marriage cases before it, meaning that same-sex marriage is now legal in five states and will likely soon be legal in six others:

WASHINGTON — The Supreme Court on Monday denied review in all five pending same-sex marriage cases, clearing the way for such marriages to proceed in Indiana, Oklahoma, Utah, Virginia and Wisconsin.

The move was a major surprise and suggests that the justices are not going to intercede in the wave of decisions in favor of same-sex marriage at least until a federal appeals court upholds a state ban.

The move will almost immediately increase the number of states allowing same-sex marriage from 19 to 24, along with the District of Columbia.

The justices had earlier acted to stop same-sex marriages in Utah and Virginia, issuing stays to block appeals court rulings allowing them. Other appeals court decisions had been stayed by the appeals court themselves.

The all but universal consensus from observers of the Supreme Court had been that the stays issued by the justices indicated that the justices wanted the last word before federal courts transformed the landscape for same-sex marriage. But in recent remarks, Justice Ruth Bader Ginsburg said there was no urgency for the court to act until a split emerged in the federal appeals courts, all of whose recent decisions have ruled in favor of same-sex marriage.

The immediate effect of this ruling is that same-sex marriage will become virtually instantly legal in the five states whose laws were the subject of the appeals before the Court; Virginia, Utah, Oklahoma, Wisconsin and Indiana. That will happen as soon as the stays that were put in place after the respective Circuit Court rulings in each case are lifted. Additionally, the rulings in the cases that dealt with these state laws will become law will become the law in the three Circuits where the rulings were made. These states include West Virginia, North Carolina, South Carolina, Colorado, Wyoming, and Kansas. In those cases, the process may take a little longer because it will take action by the Courts that are considering same-sex marriage bans in those states to strike down the laws, this could potentially be done sua sponte by the Courts in question or on motion by the parties challenging the laws. In either case, though, the District Court Judges involved in these cases are effectively bound by the decisions of their respective Circuit Courts and any ruling in disagreement with those decisions would likely quickly be set aside on the Circuit Court level. This impact on the laws in other states could happen relatively quickly, or it could take some time depending on how quickly the Courts and the parties move in each case. However long it takes, though, we are essentially now at the point where legal recognition of same-sex marriage is the law of the land in eleven additional states, bringing the nationwide total up to 30 states, plus the District of Columbia and several Indian Reservations where Tribal Courts have ruled in favor of marriage equality.  Incidentally, there are two states that are covered by this ruling, Illinois and New Mexico, where the ruling is somewhat without meaning since they have already legalized same-sex marriage through either legislative or state court action.

This development comes as something of a surprise given that most legal observers had expected that the Court would eventually accept one or more of the cases before it, not the least because in each of those cases both sides of the case had filed briefs urging the Court to accept the case so that the issue could receive a final resolution. When I wrote about the issue in July when it first became apparent that, at the very least, the cases from the 10th and 4th Circuits would be headed for Supreme Court review, I was personally expecting that this is just what would happen. The lack of a Circuit split was certainly an argument against the Court accepting the appeals, of course, but some legal scholars had argued that there already was a split between the Circuits based on a 2006 ruling from the Eighth Circuit Court of Appeals that found that there was no Constitutional right to same-sex marriage. That ruling, however, was handed down before the Supreme Court’s decision in United States v. Windsor, which has been the impetus for the long string of court opinions since July 2013 that have struck down state laws banning same-sex marriage, so it was unclear whether the Justices would consider that to be relevant when it came to determining if there is a split among the Circuit Courts of Appeal. These denials would suggest that they did not.

Since there are no opinions issued regarding these denials, we cannot be sure exactly why the Justices declined to hear these cases. The best we can say that we know is that there were not four Justices who were willing to vote in favor of accepting the appeals on either side of the ideological divide notwithstanding the argument that some had made that either the four liberals or the four conservatives would see this as an opportune time to resolve the issue. In retrospect, however, I think Jonathan Adler is correct in his observation that the lack of a Circuit split should not have made an outcome like this surprising. This is would seem to be especially true in light of the remarks that Justice Ginsburg last month in which she seemed to pour some cold water on the idea that we’d see some kind of immediate resolution of this issue from the nation’s highest court. In those remarks, Ginsburg specifically mentioned the circuit split issue in talking about the criteria that the Court looks to in deciding whether or not to take a case, and also told the audience to pay attention to what happens in the Sixth Circuit. Ginsburg was referring in that remark to a series of cases before the Sixth Circuit Court of Appeals dealing with the marriage laws of four states. The Court heard those appeals exactly two months ago today, but has yet to issue a ruling. Many observers at the time, however, came away from oral argument believing that it was quite possible that the Sixth Circuit would decide to uphold the state laws before it, as recently happened with a U.S. District Court Judge in Louisiana. If that happened, obviously, there would be the Circuit split that doesn’t exist today. At the time of Ginsburg’s remarks, I posited that the Court could hold on to the appeals that it denied today until the Sixth Circuit has ruled, but obviously the Justices did not feel inclined to do that.

Without question, today’s developments are good news for those fighting against laws barring same-sex marriage nationwide. While a Supreme Court ruling on the issue would have obviously had a much greater and more immediate impact on the nation, at the very least the Court’s action-by-inaction will have the effect of greatly expanding the number of states in which same-sex marriage is legal to the point where it will eventually encompass a majority of the states. Additionally, while the denial of an appeal by the high court does not have any binding value as precedent, it’s probable that Judges outside of the affected Federal Circuits will see it as a signal to the the Judiciary of where the Court would head on this issue if the time ever came that it did have to issue a ruling. Obviously, that time is likely to come much sooner if the Sixth Circuit or another Circuit rules in favor a a state-law ban on same-sex marriage, possibly even before the end of the term that began today. At the very least, though, it strikes me that, while it falls short of the marriage equality movement’s Loving v. Virginia at this time, today’s developments will only hasten the day when same-sex marriage is legal nationwide. Whether that happens through one Supreme Court ruling or through ruling in the remaining nine Circuit Courts of Appeal is something that only time will tell.

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.


  1. C. Clavin says:

    America just got a little more free…in spite of all efforts to the contrary.

  2. JWH says:

    Rather than failing to act, I think the Supreme Court has acted quite decisively.

  3. stonetools says:

    I think even the conservatives in the SCOTUS can read the writing on the wall. I give it two more years for them to put the oppose-same-sex marriage movement out of its misery.

  4. Mikey says:

    @stonetools: Certainly if there weren’t four Justices who wanted to take these cases, there won’t be five who would vote to uphold a state ban.

    It’s only a matter of time. I wonder which state will be the last dead-ender holdout?

  5. C. Clavin says:


    I give it two more years for them to put the oppose-same-sex marriage movement out of its misery.

    Nah…these people never change their views.
    The only hope is for a new generation to turn their back on the homophobia and xenophobia and bigotry and racial prejudice that currently defines the GOP.
    As we speak John Boehner is under fire for fundraising for an openly gay Congressional candidate. The Family Research Council Action Fund and the National Organization for Marriage aren’t going anywhere.

  6. gVOR08 says:

    @stonetools: I don’t see same-sex marriage as very important to establishment Republicans. For them, it was only a tactic to keep the rubes on board. And it wasn’t working any more. So they let it go.

    The flip side is that while this is good news for the country, we mustn’t let it distract from the economic and regulatory issues that are way more important, both to establishment Republicans who wish to see taxes cut, subsidies expanded, and environmental regulation eased; and to liberals who wish to see democracy in the US and the environment survive.

  7. LaMont says:

    Why am I not surprised by this “inaction”? They are cowards! They’re willing to accept social issues and be “trend setters” when they can finagle letter-of-the-law pratices to fit their own ideology but not so when it becomes obvious that a letter-of-the-law route wouldn’t work.

    This “action by inaction” exacerbates the narrative that the Supreme Court consists of a bunch of clowns.

  8. This is probably tactics:

    The liberal justices don’t want to change the lower courts ruling and thus have no reason to vote for a review.

    The conservative justices are afraid they’ll lose and thus would rather let a lower court ruling that only effects a specific district than risk a SCOTUS loss that applies to the whole country.

  9. stonetools says:

    @Stormy Dragon:

    Who knows what’s in the mind of Justice Kennedy? Only the Shadow- maybe…..

  10. Hal_10000 says:

    @C. Clavin:

    Nah…these people never change their views.

    Except … that they do. Polling has been moving toward acceptance among all demographics. Even among conservatives, it has 30% support, double what it was a decade ago. Even evangelicals are wavering (I think Politico had an article about it this summer). The issue has become safe enough that a large number of Democrats and even some Republicans are “evolving” on the issue.

    I hang out on some pretty conservative blogs and even the ones that care aren’t pushing it anymore. NOM has gone from a mainstream movement to a fringe movement in just a few yars. The opposition hasn’t completely collapsed, but it’s teetering back and forth. I give this issue maybe five years before it’s completely dead. And a big part of it was the pro-marriage but narrow ruling from the supposedly radical Roberts court that nudged the country in the right direction.

  11. LaMont says:

    @Stormy Dragon:

    This is probably tactics:

    Understood and I repeat – They are cowards. This is a civil rights issue gaurded by freedom “from” religion. It is a straight forward interpretation of our existing laws and should lead to a simple ruling. Step up and put an end to the argument once and for all.

  12. C. Clavin says:

    Maybe…who knows…I just look at the record. Decades after the CRA, Roe v. Wade, the Laffer Curve, and who knows what else…they still haven’t given up.

  13. LaMont says:

    Let the chips fall where they may. I guess that is asking too much of a political polarizing Supreme Court…

  14. stonetools says:


    Hey, I’ll take the SCOTUS allowing nature to take its course over active massive resistance, which is what the Supreme Court is doing in the cases of voting rights, women’s rights, and various economic issues. You take a win any way you can and you go with SCOTUS you have, not the Warren Court type one you wish you had…

  15. Hal_10000 says:

    I think the subtext of the Court’s decision here is that they hope the Circuits will all rule the same so that they don’t have to rule on it again. Gay marriage will be legal throughout the country without SCOTUS having to issue a ringing declaration.

  16. HarvardLaw92 says:

    They just spoke volumes, IMLO, about the direction that their eventual resolution of the issue is likely to take, in that by essentially directing 11 additional states to proceed in allowing SSM, they are grossly increasing the number of marriages which would be in limbo in the event of a negative ruling by SCOTUS on this issue. They wouldn’t allow that many couples to be placed into a scenario where they could essentially find themselves unmarried down the road.

    Had they been concerned about that, they would have been much more likely to pocket the cert petitions at the least until the ruling(s) from the 6th Circuit are handed down.

  17. grumpy realist says:

    @HarvardLaw92: That’s a VERY good point! The more SSMs there are around, the more the momentum is against a negative decision.

    I bet SCOTUS also looked at the fooraw after Roe vs. Wade and decided, “nah, we want to be behind the curve on this one.”

  18. michael reynolds says:

    My theory is that Scalia doesn’t want to end up looking like this generation’s Justice Taney. But he’s just such a hateful old dick he can’t actually man up and make a legal decision, so he and the conservatives are letting marriage equality come through the back door. (Rimshot!) That’s fine with the liberals, so we get this gutless b.s.

  19. HarvardLaw92 says:

    @michael reynolds:

    It only takes four votes to grant cert, so the liberal bloc could have forced this issue before the court now, had they been so inclined.

    That they didn’t & accepted denial instead pretty much tells me where Kennedy sits on this issue (in favor), and by denying cert now, they are allowing this to happen incrementally instead of all at once. You should expect to start seeing filings from parties in all of these affected states seeking directed rulings (assuming the circuits don’t just act sua sponte, which especially with the 4th Circuit is a likely path, IMO.)

  20. PeterH says:

    I wonder which state will be the last dead-ender holdout?

    my money is on Mississippi, I mean, it only took them 148 years to ratify the 13th amendment….aren’t they last in just about every category anyway?

  21. James Pearce says:


    Gay marriage will be legal throughout the country without SCOTUS having to issue a ringing declaration.

    I guess you were a bit premature giving credit to “the supposedly radical” John Roberts then…..

  22. HarvardLaw92 says:


    I think the 5th Circuit will be one of the last to rule, agreed.

  23. HarvardLaw92 says:


    And a big part of it was the pro-marriage but narrow ruling from the supposedly radical Roberts court that nudged the country in the right direction.

    Windsor was the operative ruling in this scenario. Hollingsworth is a by-thought at this point. There was never a reality in which denial of equal status was held to be a sweeping violation of an implicit grant of equal protection in the 5th Amendment, but somehow didn’t violate the explicit grant of the same in the 14th Amendment at the state level.

    Once Windsor was handed down, it became a matter of when, not if, SSM became nationwide policy.

  24. James Pearce says:

    @HarvardLaw92: Windsor?

    You don’t think Varnum v. Brien was the “when not if” moment?

  25. HarvardLaw92 says:

    @James Pearce:

    No, not really, because that case dealt with the Iowa Constitution, and only approached the federal aspect in dicta. I do think that case was the pebble that started the boulder of public opinion rolling, but the affirmative death knell for these bans (again, IMO) was Windsor. That was the point at which they became nonviable.

    Up until Windsor, it was a question of if. Post-Windsor, it is a question of when.

  26. James Pearce says:

    @HarvardLaw92: Can you get a Windsor without Varnum V Brien?

  27. HarvardLaw92 says:

    @James Pearce:

    Sure, in any number of ways. I get what you are saying, and I agree that Varnum (sort of) started the ball rolling, but the real defining moment for this issue was Windsor. We can look back further to Baehr v. Miike as well. There were many things that started this ball rolling in the court of public opinion, but the thing that started resolving it was the involvement of the federal courts.

    Consider how many of the cases overturning these bans have cited Windsor as the governing precedent (hint: all of them). It was SCOTUS pretty much telling the circuits “overturn these bans, with all due haste”. Scalia, rhetorical whiner that he has become, noted as much in his dissent.

    In other words, had Windsor gone the other way, we’d be looking at a very different playing field right now. It was the point at which the outcome became a certainty.

  28. Gavrilo says:

    @michael reynolds:

    Your theory about Scalia is remarkably stupid considering he authored the dissent in Windsor so his opinion on the constitutionality of same sex marriage bans is pretty well established.

  29. Eric Florack says:

    @C. Clavin: an interesting set of charges youre leying, there, Clavin.

    I mean, really now… everywhere its been tried, referendums… and polling data, have come back as being solidly agaisnt this by margins of well over 50% in every case.

    Now, unless youre willing to aver that the GOP constitutes well over 50%, or youre going to suggest well over half of Democrats are incurable bigots, it would seem your analisys is lacking and there is something else driving the resistance, that you have yet to fathom.

  30. HarvardLaw92 says:

    @Eric Florack:

    If you had polled America back in 1967, you’d probably have found a pretty large majority opposed to miscegenation. This has never been about public opinion, which is why it is appropriately being decided by the only part of government which couldn’t give any less of a damn about public opinion.

    That having been said, this is largely not a D vs R issue. It’s an old people vs younger people issue, and in that regard, public opinion will only move in one direction – against you.

    You, of course, may continue to stomp your feet in opposition to SSM, in what we have become accustomed to as being your style.

    It’ll happen nonetheless.

  31. C. Clavin says:

    @Eric Florack: @Eric Florack:
    You like polling when it can be spun in your favor…abhor it when it can’t. One day you condemn Obama because you say he is only reacting to polls. The next day you want us all to change our views based on polls.
    Then there is the fact that you are the worst bigot I’ve ever known of.
    So really….I can’t even read your comment as serious.

  32. James Pearce says:


    In other words, had Windsor gone the other way, we’d be looking at a very different playing field right now. It was the point at which the outcome became a certainty.

    I don’t mean to diminish the significance of Windsor, but how likely was it that Windsor would “go the other way” had Varnum not been decided as it was?

  33. Electroman says:

    @Eric Florack:

    What you talkin ’bout, Willis?

  34. HarvardLaw92 says:

    @James Pearce:

    Windsor hinged entirely on the attitude of one person – the man who wrote the opinion. Realistically, it could have gone either way that Kennedy decided to face his conscience.

  35. LaMont says:


    You don’t get my point… I don’t “wish” for anything but for the highest court in the land to interpret the laws on this issue once and for all. Nothing more or less.

  36. HarvardLaw92 says:


    And they will. By doing it this way, the liberal bloc on the court gets what they want, largely without the negative consequences of doing it in one fell swoop.

    On issues like this (rancorous ones …), when they have largely already decided on the direction that they intend to go (as I am convinced they already have with regard to SSM), they have a history of waiting for a negative ruling they can overturn to implement that direction. It gives them a great deal more latitude to inject broader concepts as binding law than narrowly upholding an affirmative ruling would afford them.

    IMO they (the lib bloc +1) are almost certainly waiting for a negative ruling from the 6th (or perhaps 5th) Circuits. When that shows up before them, I think you’ll be pleased.

  37. anjin-san says:

    @Eric Florack:

    polling data

    Polling data shows Americans want higher taxes on the rich. Where do you stand on that one skippy?

  38. Vast Variety says:

    @Eric Florack: I know of a few polls that don’t abide by your claim that…

    everywhere its been tried, referendums… and polling data, have come back as being solidly agaisnt this by margins of well over 50% in every case.

    Washington State – Referendum 74 – 53.7% approve, 46.3 reject – Same Sex marriage legalized
    Maryland – Question 6 – 52.4% Approve, 47.6% Reject – Same Sex Marriage legalized
    Minnesota – 52.6% of state voters rejected a constitutional amendment to ban same-sex marriage
    Maine – 53% Approve vs 47% reject Same Sex Marriage Legalized.

    Oh wait… sorry those weren’t polls… those were actual votes… my bad.

  39. OzarkHillbilly says:

    @Hal_10000: Like Lamont said, cowards.

  40. OzarkHillbilly says:

    @HarvardLaw92: Yes and…

    @michael reynolds: Nailed it.

  41. HarvardLaw92 says:


    It’s not, and it never was, Scalia’s decision to make. Kennedy is the swing vote on this issue. Had he been opposed, the conservative bloc would have fallen over themselves to grant cert on one of these cases and get it settled in their ideological favor.

    The fact that there wasn’t four votes on their side to grant tells me one thing – Kennedy is in favor – and there is nothing really to be gained by making a sweeping ruling in favor that may end up being moot in a practical sense by next June (at least at the rate that the circuits have been moving on this issue anyway.)

    Personally, my antennae are telling me a few things:

    1) There are at least 5 votes, and possibly 6, in favor of SSM on the court as it sits.

    2) They are waiting for a negative ruling – most likely one of the batch from the 6th, but possibly one more strongly worded version emanating from the 5th Circuit – but in any case a negative ruling which they can overturn, and in doing so give free rein to the sweeping oratorical masterpiece which I have no doubt Kennedy is itching to write.

    Remember, you are talking about a group of people who still largely abstain from email, in favor of memos slid under doors. They operate in a different, much slower and more considered reality than you or I do. It may sting to wait a bit longer, but something tells me that it’ll be well worth the wait.

  42. James Pearce says:


    There are at least 5 votes, and possibly 6

    Who would be the 6th?

  43. HarvardLaw92 says:

    @James Pearce:

    Roberts. His dissent in Windsor was tepid, narrow and honestly a bit pedantic, and he took pains not only to separate his dissension from that of Scalia, but also to avoid joining the more bombastic later sections of Scalia’s dissent.

    I don’t have enough of a feel for his views on federalism to make an educated prediction, but my gut tells me that he’s conflicted about this issue. Depending on how the majority sells its opinion structure, they could find him willing to join. Whether they would be willing to do that would depend on how much they had to water down what I have no doubt will otherwise be a barn-burner in the tradition of Brennan railing against censorship or Black practically thumping the table with his shoe in Engel.

    So – possible? Yes. Probable – doubtful, but at his heart I think his love affair with the law possible overrides his conservatism. We’ll have to wait and see.

  44. Hal_10000 says:


    I prefer this sort of quiet ruling to something like Roe. I’m convinced that had Roe been a more narrow ruling, the abortion debate would have been a lot less bitter and we’d ultimately have a lot fewer restrictions on the practice. This non-grant of cert will effectively legalize gay marriage without polarizing the debate even further and breathing new life into NOM. Culture conservatives feed off a bunker mentality.

  45. Tyrell says:

    @JWH: Too bad the “Supreme” Court didn’t “fail to.act” in many other cases, such as the AHA and other unconstitutional government fiascos that it forces on the people.

  46. HarvardLaw92 says:


    Too often, that word seems to serve as a placeholder for “anything the court does that I disagree with.” Could you possibly elaborate on exactly why / how “AHA” ( I assume you are referring to PPACA) is unconstitutional?

  47. Kylopod says:


    this is largely not a D vs R issue. It’s an old people vs younger people issue

    Indeed. Recent polls indicate that a majority of young Republicans favor SSM:

  48. Grewgills says:

    @Vast Variety:
    Now there you go injecting facts, you know Bithead doesn’t deal in facts.

  49. C. Clavin says:

    Don’t mind him…he wants to trade chickens for MRI’s

  50. Tony W says:

    @anjin-san: Ooh, and gun control – registration at least. Ask him about that one too.

  51. Mu says:

    Ok, I’m a bit unclear of what the consequences of these “denial of review” are. Clearly, for now, the states have to issue SSM certificates. But – if at some later point – the SCOTUS would allow a ban to stand based on another circuit’s decision, does that reinstate the now overturned bans or would the affected states have to go back an introduce new ones?

  52. Mikey says:

    Republicans have gone totally schizophrenic over this.

    I don’t usually listen to conservative talk radio, with one big exception: I listen to the morning show on D. C. station WMAL on the way to work (about 20 minutes). It’s hosted by former Fox News guy Brian Williams and Breitbart’s Larry O’Connor, so you can bet it’s pretty conservative.

    But this morning they were basically saying “look, SCOTUS allowed same-sex marriage to stand, 80% of millenials support it, isn’t it time to just accept it’s here to stay and move on?” O’Connor displayed an actually impressive level of empathy by stating multiple times he thought it would be horribly unfair to nullify the marriages of hundreds of thousands of gay couples some years down the road. “How would you feel if you got married in accordance with the law, then five years from now the Supreme Court overturns gay marriage and boom! your marriage is no longer valid?” Wilson said he’d prefer it be left to the states, but he doesn’t really mind gay marriage anyway so he’d be fine with it staying.

    The schizophrenia entered when uber-conservative Mark Levin called in and started going on about “where in the Constitution is this?” etc. and saying they very much should “keep up the fight” and so on. I got to the office at that point and didn’t get to hear the rest of the conversation, but Wilson and O’Connor didn’t sound like Levin was going to change their minds.

    Still, if those two guys, whose conservative bona fides are hardly questionable, have decided it’s time to move on–and I don’t doubt they also figure moving on will remove same-sex marriage as an issue to use against the GOP–maybe things will move forward even more quickly.

    One can always hope…