Sutton on Denial of Certiorari in the SSM Appeals

November 6th, 2014

Recently the Attorney General of Arizona determined that in light of the Court’s denial of certiorari in the same-sex marriage appeals, it would constitute a violation of Rule 11 to appeal an adverse judgment from the 9th Circuit. Is this the case? I think Rule 11 is inapt, but the case can be made that after the denials, the Court signaled that it was okay letting lower court decisions go into effect invalidating state bans on same-sex marriage. Judge Sutton agrees:

That brings us to another one-line order. On October 6, 2014, the Supreme Court “denied” the “petitions for writs of certiorari” in 1,575 cases, seven of which arose from challenges to decisions of the Fourth, Seventh, and Tenth Circuits that recognized a constitutional right to same-sex marriage. But this kind of action (or inaction) “imports no expression of opinion upon the merits of the case, as the bar has been told many times.” United States v. Carver, 260 U.S. 482, 490 (1923). “The ‘variety of considerations [that] underlie denials of the writ’ counsels against according denials of certiorari any precedential value.” Teague v. Lane, 489 U.S. 288, 296 (1989) (internal citation omitted). Just as the Court’s three decisions to stay those same court of appeals decisions over the past year, all without a registered dissent, did not end the debate on this issue, so too the Court’s decision to deny certiorari in all of these appeals, all without a registered dissent, does not end the debate either. A decision not to decide is a decision not to decide.

But don’t these denials of certiorari signal that, from the Court’s perspective, the right to same-sex marriage is inevitable? Maybe; maybe not. Even if we grant the premise and assume that same-sex marriage will be recognized one day in all fifty States, that does not tell us how— whether through the courts or through democracy.

As a matter of precedent, this accurately states the rule about cert denials. Though, I think Sutton may have underplayed the significance, not only of denying cert, but of lifting the stays, and allow court-judgments–not legislative enactments–to proceed and allow gay marriages. The fact that stays were granted, without dissent, maintained the status quo. But lifting the stays, without dissents, radically changed the status quo, and the entire calculus.

Judge Daughtry counters in dissent:

In addition, the order was not cited in the three orders of October 6, 2014, denying certiorari in Kitchen, Bostic, and Baskin. If this string of cases—Romer, Lawrence, Windsor, Kitchen, Bostic, and Baskin—does not represent the Court’s overruling of Baker sub silentio, it certainly creates the “doctrinal development” that frees the lower courts from the strictures of a summary disposition by the Supreme Court. See Hicks v. Miranda, 422 U.S. 332, 344 (1975) (internal quotation marks and citation omitted).