I took a week’s vacation from blogging, only to return to stunning news. The US Supreme Court denied to grant the petition for a writ of certiorari in Kitchen v. Herbert. In other words, the Court’s not going to hear the case. They didn’t ‘grant cert.’ Which means that Judge Robert Shelby’s decision, as affirmed by the 10th District Court of Appeals, stands.
Gay marriage is now legal in Utah.
See, that’s the kind of in-depth legal analysis you can only get from a disabled playwright who is sort of a casual reader of SCOTUS.blog.
Wasn’t just Utah. Appeals from the Fourth and Seventh Circuit courts were also refused cert. Which means that cases that found anti-gay marriage laws unconstitutional in eleven states total were also affirmed. Gay marriage is now legal in 30 states. One of the states affected was Indiana, my old home state. Also Oklahoma, Virginia, Wisconsin. Colorado, Kansas, North and South Carolina, West Virginia, Wyoming.
Wyoming. Where Matthew Shepherd was beaten and tortured to death. Gay marriage is now legal in Wyoming.
So what happened? SCOTUSblog found the denial of cert unsurprising, pointing out that the Supremes “regularly deny review where there is no conflict among the circuits below.” Since June, 2013, there have been over forty decisions by federal and state courts in marriage cases, all of them (with, I think, one exception) affirming marriage equality. It might just be that the justices didn’t see an issue there for them to decide.
But if you want some probably irresponsible speculation, I’m up for it. It takes four justices to grant cert. Well, let’s assume that the liberal wing of the Court (Ginsburg, Breyer, Sotomayor, Kagan) would have liked to take the case, hoping for a sweeping decision that would negate all anti-gay-marriage laws in the whole US. The conservatives (Thomas, Alito, Scalia), may have wanted to take it, hoping to reverse the national trend towards SSM. Justice Kennedy, the usual swing vote, was the deciding vote on Lawrence v. Texas, the decision overthrowing all anti-sodomy laws nationally. He’s a libertarian, and voted to overthrow the Defense of Marriage Act in the Windsor decision. It seems unlikely that he would have joined the Thomas/Scalia/Alito wing in overturning all those forty decisions, but equally unlikely that he would want a more sweeping decision.
Chief Justice Roberts, meanwhile, though very conservative, is known to be seriously concerned about what he sees as an erosion of national respect for the Court as an institution. Either choice, the sweeping gay-marriage-everywhere decision or the overturn-forty-previous-decisions decision would be perceived as overly political and likely damaging to the prestige and reputation of the court. By refusing cert, the liberals get most of what they want, as does Roberts. And Scalia, Alito and Thomas are only three votes. Sometimes, the best choice really is to punt.
The Deseret News has, for months now, kind of hilariously published at least three op-ed pieces a week arguing against gay marriage, urging the Court to take Kitchen v. Herbert, and predicting that the Court would, once and for all, reverse this dangerous national trend towards marriage equality. (Number of editorials published on the other side of the issue? Zero, of course). Some of the editorials were way over the top; others were reasonably written. But the possibility of a Supreme Court reversal never struck me as terribly likely. What I thought was most likely was a 6-3 decision affirming Judge Shelby’s decision, with Roberts joining the majority, and probably writing the decision. I thought it likely that Roberts would want to control the writing of the decision (the Chief Justice decides who writes decisions, if he’s on the majority–otherwise, it’s the senior justice in the majority). I figured he’d want to craft a narrow and limited decision affirming. But not granting cert accomplishes that same objective.
I’m a Mormon, a practicing and believing member of the LDS faith. Our General Conference ended yesterday. (It’s a big semi-annual meeting for the Mormon Church). I was particularly interested in the comments of Dallin H. Oaks (one of our apostles). He asked this question: “Why is it difficult to have Christ-like love for all our neighbors? It’s difficult because we must live among those who do not share our beliefs and values.” We’re supposed to be ‘in the world, but not of the world,’ in other words, and that can be a tricky balancing act. We’re to avoid contention, we’re to avoid anger and resentment, we’re to be disciples of the Prince of Peace, but we’re also to cling to our most deeply held beliefs. We’re combatants in an eternal battle between good and error. The ‘strong tide’ in favor of legalizing same sex marriage, said Elder Oaks, is an example of the kind of error that Latter-day Saints are supposed to oppose. (It should be pointed out that holding differing views on legal and political issues is not prohibited for Mormons).
He then went on to say this: “In public discourse, we should all follow the gospel teachings to love our neighbors and avoid contention. Followers of Christ should be examples of civility. We should disagree, without being disagreeable.”
Did Elder Oaks know in advance of the ruling how it would turn out? I don’t discount the possibility. He’s a former judge, a legal scholar of the first rank, and a man with many many friends in the highest legal circles. Was he saying ‘we lost this one. Let’s be generous in defeat?’ Possibly. Certainly his talk was primarily arguing for generosity and kindness towards people we disagree with. And amen to that.
For many of my closest friends, today’s action by the Supreme Court is a wonderful thing, a cause for tremendous celebration and joy. For others of my friends, especially my LDS friends, the news is less positive. But let me add my support of Elder Oaks’ call for civility. Gay marriage is now legal in Utah. Marriage licenses are being issued. Let’s all agree to work to make the transition as smooth and easy as possible.