Lots of people are confused today as to why the Supreme Court elected not to hear appeals on any marriage redefinition cases. Don’t panic. The sky is not falling (yet). Yesterday’s decision is almost certainly due to a legal technicality as opposed to anything regarding the merits of the cases. Each of the cases on appeal came from three U.S. circuits that all had judges that favored imposing marriage redefinition on the states. While the Supreme Court would have the authority to accept any of these cases, the Roberts court is far more restrained and is doing everything possible to roll back the negative example of the courts appearing to be “activist.” Ideally the people should decide “big issues,” not judges.
Rather than grant appeal based on any one case, it is far more likely that they are waiting for one of the circuits to return a contradictory ruling, such as is likely in the 6th circuit. It is much more within the role of the Supreme Court to settle conflicting circuit rulings than simply to decide to settle a “big issue.” The Roberts court embraces a concept of “judicial restraint” such that they actually seem to want to avoid deciding “big issues” if at all possible (consider Roberts’ amazing vote to redefine Obamacare as a tax).
Since the marriage redefinition movement is being imposed on various states almost entirely through the judiciary and not by the people (in fact against the will of the people in almost every state), the Supreme Court will eventually have to decide. By not granting certiorari for these cases thus far they haven’t decided anything…other than to say “not yet.” In essence, they’re waiting for the kind of conflict and the kind of case we saw with Hobby Lobby. That day will come. It’s anybody’s guess how they will decide, but the day will come…just not yet.
UPDATE 10/8/14: When I wrote the above last night I did have one bit of confusion in my head that I didn’t mention. I found it rather unfortunate that while we wait for the 6th circuit and others the court was going to allow the granting of marriage licenses to go forward for same sex parties. In the case of Hobby Lobby, they issued a stay while waiting for the right time to hear the issue. So I was asking myself last night, “Why no stay for this situation?” Well, now today we have it. Justice Kennedy has issued a stay for at least a couple states. I would think other states would get equal treatment if they also request.
UPDATE 10/9/14: I just got back and read the circumstances regarding Justice Kennedy’s stay. It appears now that it was pretty specific and temporary. I would guess it will be vacated shortly when the issue is resolved. That still leaves us with what I had originally said. Look for the court to take this issue up in the future and actually make a decision.