The Supreme Court opened its new Term this month with a surprise: Instead of granting review in one of the cases in which the federal appeals courts had invalidated state laws banning same-sex marriage, or even “holding” those cases pending further developments in the lower courts, the High Court denied review. Because the Court’s action—or more accurately, inaction—also had the effect of dissolving previously granted stays of the appeals court rulings, thousands of same-sex couples throughout the country were able to marry legally. And because it is difficult to imagine that the Court would have condoned that result if it thought that there were a realistic chance of later ruling against a right to same-sex marriage, most informed observers took the dismissal of the appeals as signaling that a majority of the Justices now believe there is a constitutional right to same-sex marriage.
Various commentators have criticized the Court for failing to confront the issue directly. The criticism comes from both directions. Opponents of a constitutional right to same-sex marriage say they have been deprived of their opportunity to make their argument for state regulatory primacy over marriage; meanwhile, some proponents of the right argue that the Court should deliver the coup de grâce. In its most basic form, the charge from each side amounts to a claim that the Justices took the cowardly way out.
Yet there is an important precedent for the Court’s inaction. In the wake of the landmark 1954 ruling in Brown v. Board of Education, the Justices repeatedly declined to review lower court decisions invalidating racial segregation in contexts other than education. Then, as now, the Court left the lower courts to work out the implications of its broad statement of principle.
By taking note of both the similarities and the differences between the earlier period and the current one, we can shed some light on the work of the Court.
What the Certiorari Denials Mean
As an official matter, when the Supreme Court denies a petition for certiorari (or “cert”), it thereby sets no precedent. The Court accepts only a small fraction of the cert petitions filed for plenary consideration, and cannot possibly give full consideration to the merits of each such petition. Thus, the rule that treats a cert denial as non-precedential makes sense.
Why then do informed observers regard the cert denials in the same-sex marriage cases as signaling a substantive view on the merits? We can see the answer by considering a counterfactual example.
Suppose that a majority of the Supreme Court were open to the possibility that the Constitution permits states to ban same-sex marriage. If so, and if the Court eventually grants cert in a case presenting the question whether a state same-sex marriage ban is valid, what would happen if the Court were to rule that there is no constitutional right to same-sex marriage after all? Thousands of same-sex couples who got married during the period when the lower courts had declared a right to same-sex marriage would find themselves in a legal limbo. The states in which they live might choose to continue to honor their marriages, but they might not. And because a federal court has no power to require a state to provide “grandfather clause” protection based on a subsequently overruled decision, a Supreme Court ruling denying a right to same-sex marriage would create extraordinary legal difficulties for the couples and the states.
Accordingly, if there were any real chance that the Supreme Court will rule against a right to same-sex marriage, it would have been utterly irresponsible for the Court to have denied cert in the cases finding such a right and to have lifted the stays of judgment in those cases. Because there is no reason to think that the Supreme Court is utterly irresponsible, the cert denials therefore sent a strong signal that the Court would recognize a constitutional right to same-sex marriage in some future case—probably if and when a federal appeals court or state supreme court rejects such a right.
The Post-Brown Cases
The Supreme Court’s denial of the certiorari petitions in the same-sex marriage cases earlier this month echoes its approach to racial segregation sixty years ago. Most people recall Brown v. Board as the case that held de jure racial segregation unconstitutional, full stop. But the truth is somewhat more complicated.
In 1896, in Plessy v. Ferguson, the Court rejected an equal protection challenge to a Louisiana law requiring railroads to segregate passenger cars based on race. The concept of “separate but equal”—a phrase that appears in (the first) Justice John Marshall Harlan’s Plessy dissent but not in the majority opinion—was thus entrenched in American law for over half a century.
Brown did not, however, directly overrule Plessy. Instead, while disavowing some of the broader language of Plessy, the Brown Court ended up concluding that whatever might be true about transportation, segregated public educational facilities were unconstitutional. Chief Justice Earl Warren’s opinion for a unanimous Court discussed developments in public education since the Nineteenth Century, and its importance in shaping citizens. He concluded that “in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”
That conclusion raised but did not answer an obvious question: Did the doctrine of “separate but equal”—which, after all, had been first accepted by the Court in a case involving transportation—still have a place in other contexts? The Court did not address that question. Over the next decade and a half, the Justices repeatedly refused to give plenary consideration to any case involving segregation in such other contexts. Instead, the Court simply affirmed without opinion the rulings of the lower federal courts invalidating de jure racial segregation in public parks, golf courses, beaches, buses, athletic events, courtrooms, and other places. Then, as now, the Supreme Court left the specific implementation of the broad principle to the lower courts.
Retroactive Great Case Status for United States v. Windsor
Although the Court’s post-Brown behavior provides an important precedent for the cert denials in the same-sex marriage cases, there are also some differences between then and now. Consider two.
First, the post-Brown cases arose as appeals rather than as certiorari petitions. Under a law that Congress repealed in 1988, when a lower federal court struck down a state law as unconstitutional, the state had a right to appeal to the U.S. Supreme Court. Unlike the writ of certiorari, an appeal under the pre-1988 law conferred non-discretionary jurisdiction on the Supreme Court.
The Supreme Court’s post-Brown decisions ducking the question of whether Brown applied in various other contexts were thus technically judgments on the merits. Whereas we must piece together the current Court’s acceptance of a right to same-sex marriage from the presumed intentions of the Justices, when the Court affirmed the post-Brown cases without opinion, it was officially making law.
Nonetheless, one should not make too much of this distinction. In the decades leading up to the 1988 repeal of the Supreme Court’s mandatory appellate jurisdiction, docket crowding prevented the Justices from giving full consideration to every case that fell within that jurisdiction. Consequently, the Court routinely “cheated,” by summarily affirming rulings of the lower federal courts. Hence, even if a summary affirmance from the pre-1988 era counts as a judgment on the merits in some technical sense, everyone understands that these summary affirmances do not have the full precedential force of an opinion after full briefing and oral argument.
Indeed, the same-sex marriage issue itself demonstrates that the technical difference between appeals and certiorari counts for little. Opponents of same-sex marriage sometimes point to the 1972 case of Baker v. Nelson, in which the Supreme Court summarily affirmed a ruling of the Minnesota Supreme Court rejecting a right to same-sex marriage. But proponents of marriage equality rightly counter that a summary affirmance from that era is barely a precedent at all.
If the difference between a summary affirmance and a cert denial is merely technical, the second difference is more substantial: although Brown v. Board did not fully decide the constitutionality of de jure racial segregation outside the education context, it was clearly a momentous case that was understood at the time to have broad implications, even if the exact borders of those implications were not entirely clear.
By contrast, prior to the cert denials earlier this month, no Supreme Court case came down unequivocally for marriage equality. True, many observers thought that the Court’s 2013 decision in United States v. Windsor—striking down Section 3 of the Defense of Marriage Act—was a good indication that the Court would eventually rule in favor of a constitutional right to same-sex marriage. But there was enough ambiguity in the Windsor opinion to permit other observers, including Chief Justice John Roberts in his dissenting opinion, to read the case as depending on principles of states’ rights that would be absent in a challenge to a state same-sex marriage ban.
The recent cert denials may necessitate a reconsideration of Windsor. Juxtaposed against the post-Brown summary affirmances, these cert denials indicate that Windsor actually was a broad statement of principle whose details were left to the lower courts to fill in.
Many Court watchers have wondered whether Justice Anthony Kennedy—the author of the three leading gay rights majority opinions in the Supreme Court, including Windsor—would some day write the definitive decision finding a right to same-sex marriage. Now it appears that he already has.