And Colorado makes it 25. How long before the Supreme Court brings it to 50?
Today, the US Supreme Court denied certiorari to challenges to decisions of the Fourth, Seventh and Tenth Circuit Courts of Appeal, which had in turn upheld decisions of federal district courts that bans on lesbian and gay couples from marrying in Indiana, Oklahoma, Utah, Virginia, and Wisconsin contravened provisions of the US Constitution.
This had the immediate consequence of bringing equal civil marriage to these five states. The effect of supreme court not taking a decision led to the biggest expansion by number of states seen to date.
The day continued, as Colorado dropped its challenge. So how does the Circuit system work, and which states could be next?
Beneath the Supreme Court, the United States is administered by geographically-based courts of appeals. This table details the division, with those states which at the time of writing have equal civil marriage for gay and lesbian couples highlighted in bold:
|1st||Maine, Massachusetts, New Hampshire, Rhode Island|
|2nd||Connecticut, New York, Vermont|
|3rd||Delaware, New Jersey, Pennsylvania|
|4th||Maryland, North Carolina, South Carolina, Virginia, West Virginia|
|5th||Louisiana, Mississippi, Texas|
|6th||Kentucky, Michigan, Ohio, Tennessee|
|7th||Illinois, Indiana, Wisconsin|
|8th||Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota|
|9th||Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington|
|10th||Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming|
|11th||Alabama, Florida, Georgia|
|DC||District of Columbia|
A rule of precedent applies at each of these levels. The district courts in the states are bound by decisions of the court of appeals of their own circuit, just as the circuit courts of appeal are bound by the supreme court. This is why the attorney-general in Colorado dropped the challenge so soon after the news today; with the decisions of the tenth circuit court of appeals that found bans in Utah and Oklahoma to be unconstitutional fully in effect, the same would result with any defence of the ban in Colorado.
We should then soon see a similar situation in North Carolina, South Carolina and West Virginia in the Fourth Circuit, and in Kansas and Wyoming in the Tenth, from a combination of state officials not defending the bans, and district court judges coming to swift decisions based on these precedents.
We are awaiting decisions from the Sixth Circuit, which heard arguments in the beginning of August, and from the Ninth Circuit, which heard arguments at the beginning of September. While the court in the Ninth Circuit seemed to follow the trend of most federal courts, in being more critical of the arguments for maintaining the bans, this is less certain in the Sixth Circuit. Listening to the oral argument, I would agree with Stern that Judge Sutton didn’t seem eager to press ahead with this. However, a few things have changed since early August, from Judge Posner’s excellent, cutting judgment in the Seventh Circuit, to the denial of cert by the Supreme Court today.
In the Sixth Circuit, Judge Sutton asked on a number of occasions why he would not be bound by the precedent of the Supreme Court in Baker v Nelson (1971), in which the court wrote succinctly on a Minnesota case on a gay couple, “The appeal is dismissed for want of a substantial federal question”. This was a mandatory review, so was considered binding on the merits. However, with the denial of cert today, Judge Sutton can no longer hide behind Baker, as the Supreme Court has effectively that it doesn’t see the decisions favouring equality as a challenge to its precedent.
I don’t think the Supreme Court will hear a case unless and until any of the circuit courts uphold the constitutionality of a state ban. This could occur in the Sixth Circuit; it could also occur in the Fifth Circuit, which will be hearing cases relating to Texas and Louisiana soon. These are appeals to ban in Texas which was struck down, and a ban in Louisiana which will be upheld.
Equality advocates want the Supreme Court to hear a case on this matter sooner rather than later, to lead to an opinion that with one fell swoop would bring equal civil marriage to gay and lesbian couples across the whole of the United States. There is little reason to suppose that any of the five who voted to strike down a section of the Defense of Marriage Act in United States v Windsor (2013) would not also strike down all bans as unconstitutional, least of all the one who wrote that judgment, Justice Anthony Kennedy. The four who would have upheld DOMA surely suppose the same thing of their colleagues as the rest of us.
There is another interest too here, that of standing by the sovereignty and competence of lower courts. It is within their remit to determine constitutional questions within their jurisdiction; the Supreme Court should not hear a case simply because there’s public demand for a decision of a lower court to be extended.
It takes four justices to grant cert to a case. In the case of these circuit decisions, the five were of course happy to let them stand; the four may not have agreed with them, but not either wish to hasten the moment when the court would rule for equality for all.
This is why supporters of equality might paradoxically hope that either the Fifth or Sixth Circuit Courts of Appeals will decide to uphold bans. Not only would there then be a circuit split, but a result the anti-DOMA 5 would surely feel confident to see challenged before the whole court.
We’ll wait and see.