by Michael Dorf
The Supreme Court order granting a stay of the ruling of the 4th Circuit regarding Virginia's same-sex marriage ban makes it nearly certain that the Court will grant cert to decide the constitutionality of laws banning same-sex marriage in time to be decided during the upcoming (October 2014) Term.
No one can be surprised by this order, given the similar SCOTUS disposition in the Utah case back in January. But the Utah case was different in an important respect: The underlying merits decision was a ruling of the district court; thus, one could understand the SCOTUS grant of a stay there as merely based on the view that the status quo ante ought to be preserved so that the appeals court could hear the case without risking putting marriages in limbo. (Of course, there was enough of a delay between the district court ruling and the time when the Supreme Court stay was granted, that limbo wasn't avoided anyway, but that's a different point.) By contrast, the SCOTUS order in the Virginia case comes after an appeals court disposition, and is in effect "pending the timely filing and disposition of" a cert petition. If the Court denies cert, that will mean the stay is dissolved and same-sex marriage will be legal in Virginia (and the other states in the 4th Circuit). But I can't see the Court doing that unless the Justices are certain that they will eventually affirm a right to same-sex marriage. And if they were certain of that, then they wouldn't have granted the stays in either the Utah or Virginia cases, because the limbo problem only arises if there is a serious prospect that marriages will be found legal and then later made illegal.
So I think the likely--indeed the overwhelmingly likely--outcome of a cert petition in either the Virginia case or some other case to reach the Court soon will be a grant of cert. And notwithstanding my analysis above, I think it quite likely that the Court will then find a right to SSM. That's because the likelihood of a 5-4 vote in the Court is enough to support the conclusion that the issue is close in one sense, but I have a very hard time counting beyond four votes against a right to SSM on this Court.