[This post is unedited and incomplete. I am publishing it against the possibility that the Supreme Court will release their ruling Friday morning. I will complete the post tomorrow.]
As we wait for the Supreme Court to dispose of the question of equality in marriage, we reflect on the oral arguments. I have to admit that my initial reaction was negative, disappointed. There were a lot of questions that I would classify as ignorant. But there were also a couple (perhaps more) that were salient in their clarity: John Roberts asked how denying a man the right to marry someone just because he was a man could be considered anything other than discrimination on the basis of sex; and Justice Ginsberg enunciated the answer to the oft repeated question (by Anthony Kennedy, e.g.) “How can the court over turn millennia of tradition?”, but as Ginsberg pointed out, the court will not rule, cannot rule on cultural or religious tradition; its jurisdiction extends no further than American civil marriage, which has existed for less than 250 years, and in that time has been transformed from an age-old institution that was based on rigidly gendered roles, to one that is completely free from and gender distinction; as the justice opined same-sex couples would not be much interested in a union based on gender distinction, whereas they are just as well suited for an gender-neutral union as are opposite-sex couples.
Most people are hoping for a landmark decision setting forth elaborate explanations of the issues and justification for the outcome; they believe that the decision will be held, as are most significant decisions, until June and the end of term. I would not be surprised to see a terse reversal as early as Friday.
It is a truism that you should not draw conclusions from oral arguments, but the temptation is very great. In this case, I believe that the court disagrees with the populace, the bar, and the press as to what was at stake last Tuesday. The latter groups seem to hold that we witnessed arguments in preparation for a landmark decision and that however misleading the questions might have been, they were intended to elicit information to inform the coming opinions. The court, think I, was doing what the Canadian bar calls “natural justice” expressed as “audi alteram partem” (I hear the other side), demonstrating that they have heard the arguments, such as they are, from the opponents of marriage equality. In lieu of a written opinion, they have indulged the Sixth Circuit and respondents with an audition. What is at stake is not a landmark decision, but a simple reversal of a circuit court that completely misread the law, could not take a hint, and offered an opinion that avoided all the actual issued before it completely.
Another set of actions by the court that are not to be interpreted as binding are refusal to grant cert. and actions on stays. Nevertheless, the court should not be assumed to deny cert. or grant stays without reason, and what may not be binding in a court of law, can certainly inform our understanding.
Last October, the court was presented with a set of cases from the Fourth, Seventh and Tenth circuits. Those cases represented, directly or indirectly more than twenty cases that held, with near unanimity, that the Supreme Court’s ruling in Windsor implied that inequality in marriage was indefensible and unconstitutional. Although near unanimous, those cases presented a wide variety of arguments and opinions argued and presented by some of the finest legal minds in the country; it would be rash to assume that the court denied cert. because the issue was not “ripe”. The fact that opinions opposing marriage equality were underrepresented and weak should not have influenced their decision: the court serves not only as a referee between divergent circuit courts, but also as a check on judicial error from below, and what such error could be more worth of correction than one that affected a large part of the country and so very many judges?
Nevertheless the court denied cert., not only did they do so, they did so with unusual dispatch. The Sixth Circuit, which was considering appeals at odds with the prevailing opinions, might have reflected that, if the Supreme Court wanted to adjudicate the issue, they could easily have waited a few weeks to see what the Sixth Circuit would do, and if necessary, include them in their considerations. The Sixth Circuit would not have been remiss to consider that the unusual haste of the Supreme Court’s denial may have been to warn them off a divergent opinion. In the event the Sixth Circuit did not take the hint, and entered their opinion which is remarkable in that it did not discuss, to any great extent, the merits of the case before it, choosing instead to opine on social issues.