February 09, 2015

SCOTUS Telegraphs Outcome Of Same Sex Marriage Case Before They Are Even Argued

The refusal to stay this ruling pending the outcome of the High Court’s decision tells us that, even though oral argument is scheduled for April, the justices have already decided how they will rule.

In an order issued Monday morning, the U.S. Supreme Court announced it had turned down an application by the state to stay the lower court decisions until the justices resolve the issue of whether the U.S. Constitution guarantees a right to same-sex marriage.

* * *

The U.S. Supreme Court ruling Monday provided no explanation from the justices who declined to block the effect of Granade’s decisions.

However, Justices Clarence Thomas and Antonin Scalia dissented from the high court’s action, with Thomas writing that the court’s “ordinary practice” is to let such laws take effect while the Supreme Court hears arguments and prepares a decision on the laws’ constitutionality.

* * *

The U.S. Supreme Court announced in January that it will take on the issue of whether same-sex couples can marry nationwide. Arguments are set to begin in late April, with a decision to come before the term’s end in June.

SCOTUS has, in recent months, failed to abide by that “ordinary practice”, which signals to many SCOTUS observers that constitutionalizing a right to same sex marriage is a done deal. Consider this observation by Owen Kerr at the Volokh Conspiracy.

Last month, when the Supreme Court granted cert in the same-sex marriage cases, I noted the lack of uncertainty about to how the Court would rule. Today’s denial of a stay in the Alabama same-sex marriage case is the latest piece of supporting evidence for that conclusion. Justice Thomas’s dissent from the denial of a stay, joined by Justice Scalia, even acknowledges the implication: The denial of a stay after the Court has already granted cert to resolve the question “may well be seen as a signal of the Court’s intended resolution” of the same-sex marriage cases. We’ll have to wait until late June for the opinion, but I don’t think the result is in doubt.

Frankly, this course of action concerns me. I believe that by acting in this fashion the justices are undermining the notion that their decisions are based upon the law and the facts of the cases before them. As Justices Thomas and Scalia note in their dissent, this signals a decision before the parties have even presented their cases. Such a perception is corrosive of respect for the court.

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