WASHINGTON — In October 2014, the Supreme Court declined to hear appeals of any of the cases challenging state bans on same-sex couples' marriages.
The decision set off a chain reaction in the days that followed, increasing the number of states with marriage equality from 19 to 29. Further moves by the Supreme Court and decisions of lower courts increased the numbers even more. By time the Supreme Court actually heard a marriage case — appeals of the cases out of the 6th Circuit Court of Appeals, led by Obergefell v. Hodges — same-sex couples had married legally in thirty-eight states.
In a new article published at the Ohio State Law Journal Furthermore, I detail the process of how that happened, why it matters, and what role Chief Justice John Roberts likely played in making it happen.
“Had the Justices accepted cert.—which requires the vote of only four Justices—in one or more of the cases before it on October 6, 2014, it would have been reaching a decision expanding marriage equality to roughly sixty percent of the states,” I write. “Instead, its ruling [on June 26, 2015,] affirmed the right in roughly the final twenty-five percent of states still enforcing marriage bans at the time of the decision.”
The court did this, I write, “without considering a single case on the merits or issuing a single precedential decision” that would bind lower courts.
Although I discussed these issues in articles over the past year, this article raises an additional, key point: The decision to deny cert in October 2014 was made “with the support of at least one of the Justices who eventually dissented in Obergefell when that Justice (or those Justices) refused to provide a vote for cert. in October.”
Because Justices Antonin Scalia and Clarence Thomas have, since October 2014, made it clear that they believe the court should have granted cert in the first batch of cases in October 2014, that leaves Chief Justice John Roberts and Justice Samuel Alito — the other two dissenting justices to the Obergefell decision.
“Although Justice Alito could have refused to vote for cert., a far more likely candidate is Chief Justice Roberts — the man interested in protecting the Court itself,” I write, explaining how several assessments about Roberts’s tenure as chief justice note how — most notably in the Obamacare cases — he has shown himself “willing to consider the court’s institutional interests as part of his role on the court.”
While Roberts has faced significant scrutiny for his Obamacare votes, I find it to be striking that there has not been similar attention paid to the likelihood that Roberts prevented a more aggressive showdown over marriage equality by not voting to grant cert in any of the October 2014 marriage case cert petitions.