Bench Memos

Today’s Decision Not to Decide

Ed Whelan is surely right to glimpse “fatigue and resignation among the conservative justices” in today’s denial of certiorari in seven same-sex marriage cases, from five states covered by three federal circuit courts of appeals.  The fact that none of them saw fit to publish a dissent from the cert denial is deeply disappointing.

The implications of today’s decision not to decide are very grave.  First, as Ed noted earlier, same-sex marriage will now have a secure place in the laws of the five states from which the jettisoned petitions came: Virginia, Indiana, Wisconsin, Oklahoma, and Utah.  The Fourth, Seventh, and Tenth Circuits cover a total of fourteen states, including several that have not adopted same-sex marriage (or had it foisted on them by judges state or federal).  Same-sex marriage proponents are now guaranteed quick victories in those states.

In the lower courts there has been some wrangling about whether “doctrinal development” has overtaken and undercut the precedent of Baker v. Nelson, a 1972 holding of the Supreme Court that a claimed right of same-sex marriage failed even to present a substantial question of federal constitutional law.  Judges in the lower courts will now feel free—and might infer that they should feel free—to consign Baker to the dustbin of history.

The damage to marriage as an institution, to the family as the linchpin of our culture, to freedom itself, especially the religious freedom of dissenters from the redefinition of marriage—all this will be reckoned up over time as a consequence of today’s refusal by the justices to take any of the cases that have so far come up to it.  But the cert denials also evince a deep disrespect for the rule of law, for the Constitution, and for the people’s right of self-government.

Perhaps it is best, in the view of some two or three (or even four) of the justices, to take a loss in some of the states today, rather than risk a loss in a ruling that nationalizes same-sex marriage next spring or summer.  But do the people in the five states whose petitions were denied today have no right even to have their arguments heard?  The courts in these three circuits wrote various forms of rhetorical twaddle to justify their imposition of a spurious constitutional right on those states.  What is the ground of the right to same-sex marriage?  Is it the equal protection clause (as the Seventh Circuit seems to believe)?  Or the due process clause (which the Fourth appears to lean toward)?  Or some penumbras-from-emanations “fundamental right” that partakes equally of both (which seems to be the view of the Tenth)?  Who knows?  The judges want a result, and legal reasoning is such a nuisance.  Now those states are stuck with that result, without a chance to argue their cases in the Supreme Court.

The Republican Party was founded in the 1850s with its first platform (in the 1856 presidential election) denouncing slavery and polygamy, both of which the party wanted the federal government to outlaw where it had power to do so, in the territories.  These were the “twin relics of barbarism.”  One year later, after Dred Scott, the Republican Party added the defense of republican government against judicial tyranny to its portfolio of fundamental principles.  The GOP was founded as a party standing for human liberty, the sanctity of the family, and a free self-governing people.  As we re-enact a slow-motion Dred Scott for the twenty-first century, it remains to be seen whether any political party in America will continue to stand for those principles.


Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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