What Will SCOTUS Do On Same-Sex Marriage?

Sooner or later, the Supreme Court will have to rule on a challenge to state laws banning same-sex marriage.

Same Sex Marriage Supreme Court

In the wake of another week of legal victories for same sex marriage, this time in Oregon and Florida, Josh Marshall wonders what the Supreme Court will do with this issue when it finally gets before it in the form of a case that they can’t dodge via procedural arguments like they did with the Proposition 8 case last year:

wrote late last year that I expected that same sex marriage would be the law of the land (by judicial fiat) by the end of President Obama’s term in office, perhaps well before that. So I have some interest in having that long shot prediction proven right.

But the question presents itself: how long does the Court let this play out? The conventional answer is maybe for quite a while. After all, the Court usually feels compelled to act precisely when there is disagreement on a matter of great national or jurisprudential import. But here that’s totally lacking. There’s no disagreement at all.

To the best of my knowledge, every judge who has had a bite at this apple has ruled that theWindsor decision means that same sex marriage bans violate the federal constitution. Not just Obama and Clinton appointees but Bush and Reagan appointees too.

So my question to the lawyers and SCOTUS watchers is this: True, there’s no disagreement between the circuits that needs to be resolved. Indeed, this has all happened so fast that no Appellate Court has even had a chance to issue a ruling. But going back to what at least seems to me like this unprecedented or extremely uncommon situation is the fact that you have something becoming de facto law very rapidly and bubbling up from the bottom. And yet there’s a question mark over it until the Supreme Court has not put a seal on it, as it were.

Clearly the Court isn’t going to act before some Circuit Courts speak. But that won’t take that long. I know that the Justices for a variety of reasons sometimes prefer to let things percolate. But if everyone is basically unanimous or perhaps even more if they’re not, what does the Court do? Must they not act?’

The first answer to Marshall’s question, of course, is that it is to some extent premature. Generally, it is true that the Court is more likely to accept a case for appeal when there is a split between the Circuits on the main issue(s) in the case, or when the matter involves the issue of the validity of a Federal Law. That second factor is the reason why the Court was quick to accept the challenges to Section Three of the Defense of Marriage Act when they presented themselves even though the Circuit Courts that had ruled on the matter had all agreed that the provision was unconstitutional. It’s true that there isn’t a Circuit split on the issue of the validity of same-sex marriage bans, but that’s largely only true at the moment because no Circuit Court of Appeals has ruled on the issue yet. That’s likely to change this summer given that there have been hearings on the issue in at least three Circuit Courts that I’m aware of off the top of my head, including the Fourth Circuit which is known for having a fairly fast turnaround when it comes to issuing opinions. It’s entirely possible that, within a couple months, we will have a differing rulings on this issue from the Circuit Courts, at which point it will become much more likely that the Supreme Court will rule on the issue.

What if there is no Circuit Court split, though? What if the Circuit Courts all end up following the lead of the District Court Judges who have ruled on this issue and find the bans to be unconstitutional? At that point, of course, the first question will be how many of the states on the losing side of those cases decide to take the case to the Supreme Court. It’s possible that some of them will decide to follow the lead of states like Pennsylvania and Oregon, where state leaders have decided to not even appeal adverse rulings at the District Court level. Those cases, of course, will die at the Circuit Court level. Some states are likely to take the case to the Supreme Court, though, and at that point the Justices will have to decide what to do with the case before them. It’s next to impossible to predict what the Court will do with a case that hasn’t even been decided at the Circuit Court level yet, of course, but in the end it’s going to depend on which group of four Justices, the conservatives or the liberals, is most willing to take the issue on. Personally, my guess is that the Court would accept the appeal(s) and that, in the end, issue a decision that strikes down state law bans on same-sex marriage using much the same reasoning that the District Courts have used, in an opinion authored by Justice Kennedy who has authored every one of the Court’s landmark decisions on gay rights. Right now, though, that’s just a guess.

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. JWH says:

    I wish that resolution of these consequential issues would not come down to what Justice Kennedy had for breakfast in the morning.

  2. grumpy realist says:

    They’ll probably push it off for as long as possible. And if it does get in front of them, expect them to come out with a decision so narrowly tailored as to be irrelevant. (That is, unless Scalia and the others get frisky)

    (We’re STILL sitting here twiddling our thumbs waiting for a good 101 test in patent law. Sigh.)

  3. Just Me says:

    I think SCOTUS will wait it out for a while but when they take the case it will make prohibition of same sex marriage unconstitutional.

    I just don’t see any other direction for them to go.

  4. bill says:

    @Just Me: yeah, they’ll punt it around as long as they can.

  5. David in KC says:

    Trying to decide how they would punt, maybe take a case where someone was married in a different state and strike down the rest of DOMA? Then put off for another year or so before they take the next step?

  6. rudderpedals says:

    I think the court’s shy about this and won’t touch it again until a circuit rules against SSM.

  7. argon says:

    It will go 5-4 in favor of SSM. As a national we’ll be embarrassed by the four dissenters, especially considering Loving v Virginia was unanimous. Mind you, with the current members of the court, the Loving case would go 5-4 today.