Kevin Walsh argues that if the 6th Circuit is inclined to uphold bans on same-sex marriage, they should instead certify the question directly to the Supreme Court. This is a rarely used procedure, that may be appropriate in this case.
This kind of thinking makes the enterprise of constitutional law seem like a game of tactics and strategy. I’m inclined to think that the Sixth Circuit should not play along and should instead send the issue directly to the Supreme Court by certifying questions. Congress has long provided such a path to Supreme Court review, now codified at 28 U.S.C. 1254(2). This would encourage the Supreme Court to have the courage of its constitutional convictions, and would provide the type of expeditious ruling that all the parties to the pending cases deserve.
Constitutional law is not poker; and neither the parties nor the lower courts should be played by the Court. Yet it sometimes feels as if the Court is playing not only them, but all of us.
The Supreme Court has disfavored certification, stating that “[i]t is … the task of a Court of Appeals to decide all properly presented cases coming before it, except in the rare instances, as for example the pendency of another case before this Court raising the same issue, when certification may be advisable in the proper administration and expedition of judicial business.” United States v. Wisniewski, 353 U.S. 901, 902 (1957). Although I have not fully thought through the question, this appears to be one of those “rare instances … when certification may be advisable in the proper administration and expedition of judicial business.” Id. If a panel majority is prepared to find a constitutional right to same-sex marriage, then certification would be inappropriate; the court should just rule on the merits and vindicate its perception of the rights of the parties before it. But if a panel majority believes both that there is no such right, and that the Supreme Court will say that there is, “the proper administration … of judicial business” is the “expedition of judicial business.”
It wouldn’t be unprecedented. You may recall in 2004, following Blakely v. Washington, and the massive uncertainty in the federal courts over the federal sentencing guidelines, the Second Circuit en banc certified an appeal directly to the Supreme Court.
We recognize that the current term of the Supreme Court has ended, but we respectfully request that the Court not only entertain this certification, but do so at its earliest convenience, with an expedited briefing and hearing schedule, cf. Dames & Moore v. Regan, 453 U.S. 654 (1981) (setting case for oral argument on June 24, 1981, after regularly scheduled arguments concluded, and deciding case on July 2, 1981); Iran Nat’l Airlines, 453 U.S. at 919 (answering certified questions seventeen days after in order to minimize, to the extent possible, what we see as an impending crisis in the administration of criminal justice in the federal courts.
The Court denied this overture in 2004.
But if the 6th Circuit did this–and thereby cut out the 6th Circuit’s erratic en banc proceedings–this would force the Court’s hand, and avoid the need for an unnecessary decision.