CRF Blog

The Supreme Court’s Inaction on Same-Sex Marriage

by Bill Hayes

In The Supreme Court’s Inaction on Same-Sex Marriage for Justia, law professor Michael Dorf compares the court’s refusal to hear same-sex marriage cases with its actions following its 1954 Brown v. Board of Education decision.

The Supreme Court opened its new Term this month with a surprise: Instead of granting review in one of the cases in which the federal appeals courts had invalidated state laws banning same-sex marriage, or even “holding” those cases pending further developments in the lower courts, the High Court denied review. Because the Court’s action — or more accurately, inaction — also had the effect of dissolving previously granted stays of the appeals court rulings, thousands of same-sex couples throughout the country were able to marry legally. And because it is difficult to imagine that the Court would have condoned that result if it thought that there were a realistic chance of later ruling against a right to same-sex marriage, most informed observers took the dismissal of the appeals as signaling that a majority of the Justices now believe there is a constitutional right to same-sex marriage.

Various commentators have criticized the Court for failing to confront the issue directly. The criticism comes from both directions. Opponents of a constitutional right to same-sex marriage say they have been deprived of their opportunity to make their argument for state regulatory primacy over marriage; meanwhile, some proponents of the right argue that the Court should deliver the coup de grâce. In its most basic form, the charge from each side amounts to a claim that the Justices took the cowardly way out.

Yet there is an important precedent for the Court’s inaction. [more]