Denial of Cert in SSM Cases and the Lower Courts

October 6th, 2014

Today the Supreme Court denied cert in all seven petitions for certiorari on the SSM appeals, thereby lifting stays, and allowing gay marriages to proceed in those states. There are still several cases pending in the 5th and 6th Courts of Appeals. If cert was granted today, I expected both courts to stay any proceedings. But now that certiorari was denied, thereby paving the way, I think it sends a clear signal to the lower courts that the Justices (or at least 6 of them) are happy with the opinions from Posner et al. This really changes the calculus.

But then again, depending on the draw of the panel, the lower courts may want to force the Justices to resolve it.

This is frankly stunning. There were five votes to stay all of the lower court proceedings, but not four votes for cert? Someone (maybe the Chief) joined the Kennedy gang to deprive the Court. And no dissental from Scalia.

The Court may have just simply wiped its hands clear of this with a single order. There will be no judicial resolution by the highest court of the land for the most important issue in years. This just may be the closest Judge Posner gets to being a Supreme Court justice. No wonder RBG has been so spry of late.

There is some irony that the first time the Court heard this issue in Baker v. Nelson, they summarily dismissed it. The second time it came up, they dodged it in the Prop 8 case. The third time it came up, they denied certiorari.

Update: Also, I should remind everyone that a same-sex marriage case is still pending before the Texas Supreme Court…