Within the past year, a score of federal courts, both trial courts and courts of appeal, have ruled in favor of gay marriage. One lone federal judge, in Louisiana, has ruled against it; that decision is now on appeal. With another Supreme Court term due to begin October 6, the question is whether the Supreme Court will step in to resolve the issue.
In order for the rest of this blog post to make any sense, one has to understand something about the structure of the federal courts. The United States is divided into just over 100 federal judicial districts, and each of them has what are called trial courts. That is the court where lawsuits, both civil and criminal, are initially brought.
Whoever loses at the trial court has the option of going to the United States Court of Appeals, which has 12 geographic circuits. For example, the First Circuit, headquartered in Boston, hears appeals from trial courts in Maine, New Hampshire, Massachusetts, Rhode Island, and Puerto Rico. The Second Circuit, headquartered in New York, hears appeals from Vermont, New York, Connecticut, and the U.S. Virgin Islands. There are a couple of specialized courts of appeals that hear specific types of cases, but they do not concern us here.
The loser at the US Court of Appeals can then file a petition with the Supreme Court. Unlike the US Court of Appeals, the Supreme Court gets to decide which cases it will hear, and it doesn't hear many. Every year about 3000 petitions are filed with the Supreme Court, and the Supreme Court decides to hear between 100 and 150. The rest are summarily denied. There are a very few types of cases the Supreme Court is required to take, such as when one state files a lawsuit against another state, but not that many.
There are nine justices on the Supreme Court, and it takes four of them to decide to hear a case. Supreme Court justices make tactical decisions about how to vote; a justice who feels strongly about a particular case, but who thinks a majority of his colleagues will disagree with him, might vote not to take it because he doesn't want to lose on the merits.
So, now that we understand all of that, back to the original question: Will the Supreme Court agree to take a gay marriage case this term?
If the Supreme Court wants to decide the issue, it may be now or never. Four circuit courts of appeal will never rule on gay marriage because gay marriage is already legal in every state (or, in the case of the District of Columbia Circuit, in Washington DC) within that circuit. Three other circuits have already ruled -- all in favor of gay marriage -- and at least one and possibly three others will have done so by the time October 6 rolls around. All circuits will likely have decided the issue in another 12 months or so. So, after this term, there may simply not be any more gay marriage cases to decide, especially if the circuits that have not yet been heard from all rule in favor of gay marriage, which is possible. If that's the case, the easiest thing for the Supreme Court to do would be to simply punt the issue.
If there is a circuit split -- one or more of the circuits that has not yet been heard from rules against gay marriage -- that makes Supreme Court review that much more likely, but still not a sure-shot certainty. Resolving circuit splits is one reason the Supreme Court often takes cases, but it is not required to do so, and there have been other times when it has chosen not to involve itself in circuit splits, leaving federal law to be different in different parts of the country. Still, I think it would be really difficult for the court to allow different law in different parts of the country on this particular issue.
But here's the reason I think the Supreme Court might decide to avoid the issue: With nine justices, it takes five votes to decide the case on the merits, and nobody knows which side would have five votes. I don't think the justices themselves know how that vote would turn out. Which means that granting Supreme Court review would be a very high stakes poker game indeed. By my count, there are four solid votes for gay marriage, three solid votes against, one very likely vote against, and one that could go either way. Those are not the odds one wants in a high stakes poker game, regardless of which side one is on. The anti-gay-marriage side won't want to enshrine gay marriage in constitutional law; the pro-gay-marriage side won't want to risk a decision that would likely take 20 years to undo that the Constitution doesn't protect gay couples.
Of course, should one of the conservatives on the court drop dead of a heart attack, then that would significantly change the landscape, and probably also greatly increase the probability of Supreme Court review since the pro-marriage side would then be in a much better position.
At any rate, it's going to be an interesting 12 months. Stay tuned.