This morning, the Court denied review in all seven of the cases it had been asked to take up involving state bans on marriage between same-sex couples. This means that the lower-court decisions striking down marriage bans in Indiana, Oklahoma, Utah, Virginia, and Wisconsin are final and will go into effect immediately. These decisions also are good news for same-sex couples seeking to marry in Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming, as district courts in these states are bound by the Fourth,Seventh and Tenth Circuit court decisions that were presented for Supreme Court review. As a result, same-sex couples will be able to get married in 30 states and the District of Columbia.
While the Supreme Court ruled on two high-profile marriage equality cases last term, U.S. v. Windsor and Hollingsworth v. Perry, it did not directly address whether a state can ban marriage between same-sex couples or whether a state must recognize a marriage between a same-sex couple that was lawfully performed in another state. Both sides in the seven cases in which the Court denied review had asked the Court to grant certiorari in their cases so that it could rule on these questions—a very unusual occurrence, given that in most cases the party that wins in the Court of Appeals urges the Supreme Court to stay out of the matter.
Though many observers had anticipated that the Court would take up one of the cases this term, Justice Ginsburg hinted that there was no rush for the Court to step in without a circuit split on the issues at an appearance in September. She did say that she anticipates the questions will come to the Court sooner or later. There are currently marriage equality cases pending in the Fifth, Sixth and Ninth Circuits. The Ninth Circuit is reviewing cases from three states, but is expected to rule in favor of marriage equality as has every Circuit to hear such a case since the Supreme Court’s Windsor decision. The case in the Fifth Circuit, challenging Texas’ ban, has not been scheduled for oral arguments yet but commentators are suggesting that the Fifth Circuit may rule for Texas. The outcome in the Sixth Circuit, which is reviewing favorable decisions for same-sex couples in Kentucky, Michigan, Ohio and Tennessee, is less certain. If the Fifth or Sixth Circuit finds that bans on marriage between same-sex couples do not violate the Constitution, it would create a circuit split, increasing the pressure on the Supreme Court to take up the matter, either later this term or in a future term.