Hard To Port, by Jim Kelly-Evans: October 2014

Tuesday, October 7, 2014

What Happened With The Supreme Court Non-Decision on Marriage Equality

After reading plenty of analysis, it's becoming clearer to me what happened behind the scenes that led to yesterday's US Supreme Court announcement that it will decline to hear any of the seven appeals of lower circuit court decisions overturning state bans on same sex marriage. There are nine justices on the Supreme Court. It would take just four of the justices to vote in favor of hearing any of these appeals. Make no mistake about it, four of the nine justices oppose marriage equality. One of them, Scalia, actually hates gay people. He thinks we are immoral.

So why didn't the four conservatives vote to take the case? It was purely a political move. For Scalia and the other conservatives there was no good option. If the court voted to hear an appeal, and the full court went against him and decided in favor of marriage equality, as is likely, he loses the entire ball game. On the other hand, if the court did what it did and declined to hear any of the appeals, marriage equality comes to another 11 states. It was a case of the lesser of two evils for Scalia and company. So the four conservatives took the lesser of two evils option. The more reasonable moderate and liberal justices simply see no reason to get involved since they agree with the lower court decisions. Law professor Mike Dorf puts it this way:

...the denial was a kind of deal. The liberals get what they really want: nationwide SSM is inevitable. The conservatives avoid having to write dissents that will make them look like bigots to their grandchildren. The Court as a whole gets a relatively peaceful Term in which hot-button cultural issues are not especially prominent. I'm not suggesting that this "deal" was explicit, but it's relatively easy to imagine how it would take shape without anybody calling it a deal.