The Supreme Court votes “present”

Supreme Court Justices Pose For "Class Photo"The Supreme Court is not to hear appeals against lower court rulings that laws prohibiting same sex marriage are unconstitutional. The laws which have been struck down, therefore, remain struck down and the matter becomes settled law in those states, and in other states covered by the same circuit courts of appeal. The majority of gay Americans live in states where gay marriage is legally recognized, and new states will rapidly be added to that list.

But Supreme Court has not ruled that same sex marriage is a constitutional right. The law is settled only in states covered by the circuits which have already ruled. Appeals courts in other circuits may disagree

Justice Ginsburg – appointed to the court by Bill Clinton and often thought of as one of its most liberal members – has argued that there was no pressing need to intervene. All the circuit courts which have considered the matter have ruled the same way. There was no conflict to resolve.

The decision not to review the matter is not binding on anyone, but might be seen as indicative. It is possible to imagine judges in a circuit which has not yet ruled noting that the Supreme Court could have disagreed with other rulings and chose not to. This decision probably increases the chances that, when the matter arises in other states, the courts there will rule the same way.

Justice Ginsburg is happy about this. She did not want to see the courts moving too far ahead of public opinion on this, noting how the Court’s ruling in Roe v Wade politicized the whole judicial appointments system for two generations. Politically, this makes sense. No doubt, if the court had taken up the issue and found a constitutional right at stake, then many people would have felt outraged and disenfranchised.

But are we to assume Justice Ginsburg believes there is a constitutional right to same sex marriage, but has still chosen to leave the matter unresolved? There are a great many gay people living in states where gay marriage is not recognized, and probably will not be for some years. The macro-scale political advantages of leaving the matter untouched for a few years need to be weighed against the individual rights being ignored. It is not just that some people need to postpone wedding plans for a few years – or travel to another state to get married. There are more pressing matters to consider. There are considerable financial costs to consider – the death tax falls much harder on unmarried couples and it can be harder to gain pension and health coverage through a partner’s employment. There are issues of medical attorney: just who is the next of kin for a person who has been in a committed relationship for years, or even decades, but which is not recognized in law. The matter is exacerbated by the fact that it has been fairly common – though thankfully becoming much less so – for gay people to become estranged from their families. The “next of kin” could be a sibling who has had no contact in many years. 

Only four justices needed to vote to take the issue up, but it seems that fewer than four did so. Perhaps neither side was confident of resolving the issue in the way they prefer.

qlQuentin Langley is a Senior Lecturer in Marketing at the University of Bedfordshire Business School as well as a freelance columnist published in the UK and all parts of the US. He blogs on social media and crisis communications at

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