Cinderella's Dilemma: Why Did SCOTUS Decide Not to Decide?

A number of court cases regarding various states' bans on same-sex marriage have been percolating up over the past few years, and it's been a series of wins for marriage equality adovcates. This week we learned that the Supreme Court chose not to bring any of the five Circuit Court decisions up for a hearing. This had the effect of leaving those Circuit Court rulings in place, and since marriage equality won in each of them, it was a victory for those of us who support marriage equality.

Already in the affected states, county clerks are issuing marriage licenses to same-sex couples and weddings have begun in earnest. When you include states that fall within the jurisdiction of these five circuits, a total of 30 US states are now governed by favorable rulings. FiveThirtyEight crunched the numbers and determined that a majority of Americans now live where same-sex marriage is permissible.

What's not so great about SCOTUS's decision not to hear the cases is this: we still have no definitive, nationwide ruling on the right to equal marriage. States covered by the Circuit Courts who have not yet ruled on same-sex marriage are free to continue discriminating. Marriage equality remains a patchwork quilt of state laws for now.

It takes four justices to decide to hear an appeal. And there are four justices who mostly rule on the liberal side of an issue. So then, why didn't SCOTUS add marriage equality cases to their calendar?

If you look to the dilemma Cinderella faced when she found herself stuck in the pitch on the palace stairs, you'll find one possible explanation.

Stephen Sondheim and James Lapine's Broadway musical Into the Woods took a grown-up look at the fairytales most of us grew up with, and plumbed their depths in a fashion similar to child psychologist Bruno Bettleheim's book The Uses of Enchantment. In their take on Cinderella, she's excited to escape her drab existence for a trip to the ball and flattered by the Prince's attention, but wonders whether his fervor would wane if he knew her real story.

When she finds herself stuck on the steps of the palace, she thinks through her dilemma in song.

"Then from out of the blue
And without any guide
You know what your decision is
Which is not to decide
You'll just leave him a clue
For example -- a shoe
And then see what he'll do..."

The effect of Cinderella's decision not to decide shifts the burden of the decision from her shoulders to the Prince's.

Judges decide things. It's in the job description. And when they choose not to decide, it's also a decision.  

Looking first at the four consistent conservatives on the court and why they decided not to decide: either they all don't want to stop the march toward marriage equality; or if they all do, they don't believe the swing vote, Justice Anthony Kennedy, is with them on the issue. If so, to vote to hear the cases would hasten the inevitability of marriage equality. Their best hope is that one of the other circuits rules against same-sex marriage so there's a conflicting interpretation, and hope the argument that court uses to uphold a state's gay marriage ban is somehow compelling enough to persuade Kennedy.

There are a couple of things to remember about Chief Justice Roberts, counted among the court conservatives. The first is that, given the opportunity to engage in some by-God judicial activism by stopping the Affordable Care Act in its tracks, he worked instead to find a rationale by which he could support the individual mandate as a tax, and therefore within Congress's purview to legislate. Given a chance for his court to be known as the one that prevented millions of Americans from gaining access to affordable healthcare, he blinked. Could it be that he actually cares about his legacy as much or more than his conservative cred?

The second is that Roberts also joined the majority in another historic punt on same-sex marriage. In Hollingsworth v. Perry, he wrote the opinion that let a lower court's ruling against California's Prop 8 stand. He ducked the constitutional issues and concluded instead that those appealing the ruling lacked standing. The end result was that marriages resumed in California, and his court didn't have to take a position. 

It's worthwhile to remember as well that Justice Roberts has a cousin who is a gay Californian who wished to marry and attended the Prop 8 hearings with her partner.

But what about the moderate-liberal wing? There are four of them too. Are they hesitant to bring the cases forward until a dissenting circuit forces the issue to their docket? If so, why? Do they doubt they would prevail with the current court composition, or is something else going on?

They too know that deciding not to decide is a decision. 

Not deciding has consequences. As already noted, as a consequence of this punt, a majority of Americans now live in a state where same-sex marriage is, or will soon be, legal. Same-sex marriage licenses are being issued and weddings are already happening in parts of the country where no one imagined it possible just a few years ago.

As I noted on Twitter:

We have both literally and figuratively reached the tipping point. Real live people are already getting married and their relatives are buying wedding gifts and attending ceremonies. Real live people are already filing joint federal income tax returns. Members of our military are getting administrative leave to marry their same-sex partners. Real live parents are attending PTA meetings and baking goodies for fundraisers.

The consequences of not deciding are that every day, more Americans are exposed to the reality of same-sex marriage right in their hometown. Every day, the class of people in same-sex marriages grows, and grows. We have stories, and we're telling them.

The sheer weight and inertia of all those same-sex marriages makes it harder and harder for courts to find reasons to deny them. The arguments of our opponents haven't been persuasive. Daily, the number of people grows whose existing marriages, income tax status, eligibility for military family housing, and a thousand other big and tiny benefits of marriage would be rent asunder by an unfavorable ruling by a conservative court. Even a judge favorably disposed to arguments against marriage equality has to ask a plaintiff, "What's to become of all those people already in same-sex marriages?"

As I commented on Twitter:

Contrary to the mythos of the right wing, liberal justices aren't especially fond of judicial activism. They'd rather ratify what most Americans already believe to be true than create social change from the bench out of their liberal convictions. They know that the bigger the change caused by a court ruling, the more fervent can be the backlash against those who benefit from that change.

And the consequences of deciding not to decide also shift the burden to the shoulders of those who would deny marriage equality in spite of this mounting evidence that it harms no one. So Justices Ginsberg, Sotomayor, Kagan, and Breyer may have individually or collectively decided not to decide, so that Roberts, Alito, Scalia, and Thomas can remain stuck in the goo, with a shoe, on the steps of the Supreme Court. The shoe is on the other foot. And every day, that shoe becomes harder and harder to drop.

Would it be great if same-sex marriage was instantly legal all across the United States? Absolutely. But the way it's happening, first in liberal and progressive states, then gradually but relentlessly in the rest, is also welcome, and generates affirming local news coverage filled with happy couples each time another one joins the club. The liberals on SCOTUS have decided not to interrupt while the good guys are winning. And that's a decision Cinderella can support.

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