Where the Tide Takes Us

The application for stay presented to Justice Kennedy and by him referred to the Court is denied. The orders heretofore entered by Justice Kennedy are vacated.

―Supreme Court of the United States

This is not an unexpected outcome. Indeed, the blunt, unsigned order refusing Idaho’s request to stay the Ninth Circuit decision striking the state’s same-sex marriage ban is pretty much exactly expected. The only strange thing about it, really, is that the order exists at all.

The point arose last week when the Court refused to hear arguments from several states after Appeals courts struck their marriage bans. As Rachel Maddow explained to viewers:

So, there are nine Supreme Court justices. Do the math. If you want to win a case at the Supreme Court, you need five votes. You need five justices on your side. You need five votes to win a case.

But it only takes four votes for the Supreme Court to decide to take a case in the first place. So, we know there are four anti-gay marriage justices on the Supreme Court—Scalia, Roberts, Alito and Thomas. If they had wanted to hear one of these cases today, if they had wanted the chance to overturn one of those pro-gay marriage cases from the lower courts, those four justices had enough votes to take the case to do it.

I mean, the anti-gay marriage side could have taken one of those cases if they want to. So, why didn’t they?

Latta is an Article IV case. The thing is that no excuse a judge might invent to try to get around Amendment XIV, the Equal Protection Clause, marriage equality runs up against the Full Faith and Credit Clause of Article IV of the Constitution.

Given that the Supreme Court just said no to appeals in Article IV cases, one might wonder why Justice Kennedy thought to issue a stay and ask his colleagues to undertake another Article IV case.

Lyle Denniston brings us the answer:

Without explanation, the Supreme Court late Friday afternoon rejected a request by state officials in Idaho to postpone a lower-court ruling that had nullified the ban on same-sex marriage there. The two-sentence order also lifted an earlier order by Justice Anthony M. Kennedy temporarily delaying that decision by the U.S. Court of Appeals for the Ninth Circuit.

There were no noted dissents from the Court’s new order. Although it gave no reasons, the Court’s action was a further indication that the Justices are unwilling to be drawn into the constitutional controversy at this point, leaving it to lower courts to continue to explore it. Idaho officials had tried to convince the Court that their case was different from the ones that the Court had bypassed on Monday.

Certainly, it was a weak reason, but, you know, it is no big deal, right? Just making people wait for their civil rights in order to be nice to Idaho while they attempt to make an impossible argument.

Nonetheless, Idaho is go. And, you know, it was only a day. What’s another day after all these years?

Oh. Right. Obergefell. Which reminds, there is no news from the Sixth.

But there is news from North Carolina, where a District Court in Charlotte struck the Tar Heel State’s marriage ban according to Bostic v. Schaefer, a Fourth Circuit case the Supreme Court refused.

Additionally, Denniston explains the Ninth Circuit Memorandum issued Saturday, bringing a formal end to the moot Jackson v. Abercrombie in Hawai’i. It’s a happy ending.

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Supreme Court of the United States. “Order in Pending Case”. Otter v. Latta. 10 October 2014.

Maddow, Rachel. “‘Edie and Thea’ lead way to marriage equality, argle-bargle notwithstanding”. The Rachel Maddow Show. msnbc. 6 October 2014.

Denniston, Lyle. “No delay on Idaho same-sex marriages”. SCOTUSblog. 10 October 2014.

Cogburn, Max O. “Memorandum of Decision and Order”. General Synod of the United Church of Christ v. Resinger. United States District Court Western District of North Carolina Charlotte Division. 10 October 2014.

United States District Court for the District of Hawaii. “Memorandum”. Jackson v. Abercrombie and Bradley v. Abercrombie. 10 October 2014.

Something About Today: Quiet Hash

Sometimes the answers really are blowing in the wind, even if the answer is nothing more than the sounds of silence. Of course, in modern America genuine silence is hard to come by. Kate Nocera explains for Buzzfeed:

On Monday afternoon, Sen. Mike Lee was one of the few GOP members to issue a statement. His home state of Utah was one of the states where a marriage ban was overturned by an appeals court and the state is now moving forward with allowing same-sex couples to marry. Lee called the Supreme Court decision to not review the appeals “disappointing.”

Texas Sen. Ted Cruz likewise criticized the decision on the part of the court and announced that he would introduce a constitutional amendment that would allow the states to define marriage.

“I will be introducing a constitutional amendment to prevent the federal government or the courts from attacking or striking down state marriage laws,” Cruz said.

Supreme Court decisions are often met with swift reaction from members on Capitol Hill, filling reporter’s inboxes with statements of disappointment or support for whatever the justices have ruled. All the more when the decision impacts a hot-button social issue.

The muted response from congressional Republicans is telling. As public opinion on legalizing marriage for same-sex couples has dramatically shifted in its favor, the GOP’s opposition has quieted. Republicans have often argued that the decision on marriage should be left up to the states.

And let us bear in mind that Sen. Lee (R-UT) is from one of the rejected states; it’s hard for the Utah delegation to say absolutely nothing. And the Republican junior from Texas? Sen. Cruz, the strict constitutional constructionalist, is welcome to try. You know, since strict construction fails to satisfy his desires.