by Michael Dorf
Speaking at the University of Minnesota Law School last week, Justice Ginsburg made news when she said that there would be "some urgency" for the SCOTUS to take a SSM case if the Sixth Circuit were to reject a right to SSM, but a judgment that falls in line with other circuits would mean there would be "no need for us to rush." Although SSM opponents seized on these remarks as evidence of disqualifying bias (good luck with that), in fact the more natural reading of Justice Ginsburg's juxtaposition of the two situations reflects the application of a straightforward certiorari criterion: Until at least one federal appeals court rules against a right to SSM, there will be no "circuit split" on the issue warranting the immediate attention of the SCOTUS.
I think that is almost certainly how Justice Ginsburg meant her remarks (although I also think it just about certain that, when the Court decides a challenge to a SSM ban, she will vote to invalidate it). But I want to suggest that the application of the wait-for-a-split approach to SSM would be anything but routine, given the Court's prior disposition of the two cases seeking stays of judgment pending appeal. In January in the Utah case and again last month in the Virginia case, the Court--without any registered dissents--stayed the enforcement of judgments invalidating SSM bans. Denial of cert would terminate those stays, clearing the way for same-sex marriages in all of the states in circuits that have ruled in favor of a right to SSM. But if the Court then eventually grants cert in a different case, and rules against a right to SSM, there will be a good deal of uncertainty surrounding the status of the couples who married in the interim.
As I explained last December, I think the relevant federal courts precedents are probably best read to grant--at most--protection to the interim marriages for acts performed while they were deemed valid, but that federal courts lack power to "grandfather" couples married during the pendency of a subsequently reversed federal judgment. However, my analysis in that blog post was based on the assumption that federal court A says that the law of state X is invalid but that the judgment is later reversed. In the hypothetical scenario we're now imagining, the judgment would not be reversed; it would be affirmed; but following that the governing law would change. How would that affect things?
Once again, I think we would see substantial legal uncertainty. In states that failed to appeal rulings invalidating their state SSM bans, particular plaintiffs would be entitled to be treated as married. However, anyone who was not a party to the litigation probably would not be entitled to be treated as still married. Why not? Because the general rule says there is no non-mutual issue preclusion against the government, so these couples could not take advantage of the earlier judgment as a matter of preclusion law. And the circuit-level precedent invalidating the SSM ban would be wiped out by the (hypothesized) subsequent SCOTUS ruling upholding SSM bans.
Consequently, I conclude that if there is any substantial chance that the SCOTUS will eventually uphold SSM bans, then the same sorts of factors that led it to grant stays of judgment in the Utah and Virginia cases should lead it to grant cert in one of the pending SSM cases now.
To be sure, there is another option besides granting or denying cert. The Court could choose to neither grant nor deny the pending cert petitions but simply "hold" them pending the development of a circuit split. But doing that--while the stays of the underlying judgments remain in place--would seem unfair to the victorious plaintiffs and would create the impression that the Court is simply trying to duck the issue as long as possible, contrary to another claim by Justice Ginsburg.
In light of the foregoing, a decision actually to deny cert in any of the pending SSM cases would be a very strong signal that the Court's ultimate decision on SSM is a foregone conclusion in favor of invalidating state bans, because only by invalidating SSM bans would the Court avoid the uncertainty that would follow if multiple states had to deal with interim same-sex marriages that became retroactively illegal.
So . . . Justice Ginsburg may have only meant to make a bland statement about the operation of the Court's cert criteria, but if she thought through the consequences of what she was saying, then she was signaling a likely merits ruling from the SCOTUS in favor of a SSM right: A Court on which not even four Justices feel any urgency to resolve the SSM issue until an appeals court rules against a SSM right is a Court that is overwhelmingly likely to recognize a right to SSM.