Thoughts in a Haystack

In a move that surprised almost everyone, the Supreme Court yesterday denied certiorari in all seven cases concerning same sex marriage pending before it. In doing so, it let the rulings striking down bans of same sex marriage in the Fourth, Seventh and Tenth Circuit Courts of Appeal to go into immediate effect.

Directly, the bans in Virginia (Fourth Circuit), Indiana and Wisconsin (Seventh Circuit), and Utah and Oklahoma (Tenth Circuit) are now defunct. But similar bans in West Virginia, North Carolina and South Carolina (Fourth Circuit), and Wyoming, Colorado and Kansas (Tenth Circuit) are on life support and not expected to survive.

Part of this can be set down to a reluctance on the part of the Supreme Court to deal with a divisive issue, at least until there is a split between the Circuit Courts. But the Supreme Court did not have to allow the present decisions to go into effect. It could have simply allowed the certiorari petitions to remain on its calendar while allowing other Circuit Courts to weigh in. Rulings in the Ninth Circuit (almost certain to strike down bans in Nevada and Idaho) and Sixth Circuit (up for grabs in cases from Michigan, Ohio, Kentucky and Tennessee) are imminent. The Fifth Circuit also has a case in the pipeline (one where Louisiana's ban was upheld) but it is some time away from a decision.

While it is always hazardous to read the Supreme Court's tea leaves, given the legal chaos that would result from same sex marriages going forward in 5-11 states and then being nullified if the bans are reinstated, suggests that, if the Court thought it was likely that it would uphold same sex marriage bans, it wouldn't have let these rulings go into effect.
__________________________________________________

Update: As expected, the Ninth Circuit struck down bans in Nevada and Idaho. Similar bans in Alaska, Arizona and Montana will soon follow, bringing the total to 35 states.