Supreme Court Decides It Is Not Currently Taking Action on Gay Marriage

The question of whether the issue might make it all the way to the Supreme Court has been under debate since 2009. Judge Walker’s powerful strikedown of Prop 8 was very moving, but was limited to California, and still isn’t in effect because of an injuction filed against it. Lawsuits like the one Edie Windsor just won are inspiring, but can’t strike down DOMA for others.

The Supreme Court could potentially make these cases nationally important more than just in terms of emotion and precedent. Today, the Supreme Court Justices met privately to decide how they would approach the looming issue of gay marriage, or whether they would deal with it at all.

It’s a complicated decision, though, because SCOTUS can’t just decide on gay marriage as an issue; it can deal with or not deal with a number of cases that involve gay marriage, and in each case their ruling might have different implications. If the court chooses to hear an appeal on Prop 8, their ruling would speak to whether the Constitution’s equal protection clause means that it’s unconstitutional to deny same-sex couples marriage rites.

A decision in favor of gay marriage would set a national rule and overturn every state constitutional provision and law banning same-sex marriages. A ruling that upheld California’s ban would be a setback for gay marriage proponents in the nation’s largest state, although it would leave open the state-by-state effort to allow gays and lesbians to marry.

The court also had the option, though, to avoid Prop 8 entirely and take up cases having to do with DOMA. If they did so, even if they ruled in favor of gay marriage in those cases, it would only force individual states to recognize marriages performed legally in other states, but not change their own laws.

Ultimately, what the Supreme Court has chosen to do is not deal with any of these cases right now.  It will take no action on cases pertaining to DOMA or on Prop 8 at this time. This doesn’t mean that gay marriage will never make it to the Supreme Court; it means that they have decided to deal with other cases for the time being, and given the schedule of the court, this means it will probably be years before the Supreme Court deals with these cases, if ever.

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Originally from Boston, MA, Rachel now lives in the Midwest. Topics dear to her heart include bisexuality, The X-Files and tacos. Her favorite Ciara video is probably "Ride," but if you're only going to watch one, she recommends "Like A Boy." You can follow her on twitter and instagram.

Rachel has written 1142 articles for us.


  1. Ah! so many questions. Are they allowed to put it off forever, or at some point does Judge Walker’s ruling on Prop 8 take effect?

    • If they actually turn it down, the 9th circuit ruling would take effect and Prop 8 would be overturned, but only in California and the precedent would not be useful elsewhere because of the 9th’s narrow interpretation of the case.

      They can put it off for a bit, but the only thing they decided to do is to put off deciding it today. In theory, they could order it as soon as Monday if they wanted and might consider the petitions again in conference as soon as next Friday.

      • Thanks! But I still want to know what is the length of “a bit” that they can put it off? Are they allowed to just never say anything about it? Does something happen to all ignored cases at the end of the year? (Also, hi DJ! I know you from straddlermeetingup!)

        • > Are they allowed to just never say anything about it?

          I don’t think so, I think they eventually have to deny the petition or grant it. They can re-schedule it to the next term, but it’s not too common that they do it once, much less indefinitely. As far as I know (I’m not a lawyer or anything, but I’m pretty sure this is how it works?) all petitions in the history of the court have eventually been dealt with, one way or another.

          They *can* of course not hear the case, but if they do that, they have to refuse to grant the petition and the lower court’s ruling would stand, which in the Prop 8 case, means Prop 8 would be overturned.

          (They can in theory also decide / remand it without hearing it, but that’s really rare and then they still act on the petition.)

          > Does something happen to all ignored cases at the end of the year?

          No, I don’t think so. They set their schedules for review and if they need more time, they re-schedule things. There’s no automatic “time’s up, so X happens” type of thing. (And if they’re was, they’d all get denied and Prop 8 would be overturned.)

          > Also, hi DJ! I know you from straddlermeetingup!

          Oh hi! :)

  2. Just pointing out, it’s highly likely Obama will need to appoint a new justice his second term. Once that happens, there could be a solid five justices that would likely vote in favor of marriage equality. If SCOTUS here’s it after that point, then I figure it would be good.

  3. What *do* those Supreme Court judges wear under their robes? Declassified government Polaroids, next on Sick, Sad World.

  4. So I’m super bummed about SCOTUS not taking action on Prop 8& DOMA right now, but they did decide to rule on Association for Molecular Pathology vs. Myriad Genetics. It deals with the patentability of human genes, which is something very relevant to my life. I’m feeling very conflicted.

  5. Why is everyone worried?

    The Judges are letting the democratic process work itself out. Do you guys want another Roe v. Wade situation where we are still arguing forty years later? If the SCOTUS kicks the issue back to the states where it has time to marinate, when gay marriage doe go before the SCOTUS there will be more of a national consensus. The 5-4 decision in Lawrence v. Texas ensures that one day gay marriage will be a federal issue.

    The Justices cannot rule on the idea that they will be on “the wrong side of history”. They need to rule for today, and follow precedent. The democratic process needs time because lasting change and real change comes from time. I know someone will quote MLK and say “change does not role in on the wings of inevitability,” but I disagree with that.

    Minorities should not have to wait around for the majority to get their shit together, but unless we want SSM to be a divisive issue for the next 50 yrs everyone needs to slow their role. It was only in 1972 when SCOTUS declared the SSM had no federal standing; now in 2012 it is a major deal. In terms of civil rights, 40 yrs is a blip on the radar. It will all go through the democractic process and instead of winning minor battles, LGBTQA people will win the war.


    Samantha – a high school senior in Constitution class

    • > The Judges are letting the democratic process work itself out.

      If they’re rights, they’re rights. They’re not up for a vote. That we’re already in a situation where we’re voting on them and *winning* means the court is running well past the time it’s usually intervened to protect a group facing discrimination.

      > Do you guys want another Roe v. Wade situation where we are still arguing forty years later?

      I dunno, it’s been 40 years (okay, 45, it was 1967) since Loving v. Virginia, do you still people still arguing that interracial marriage shouldn’t be a thing?

      The court made that ruling when interracial marriage was far far less popular in terms of democratic process and public opinion than same sex marriage is now.

      > They need to rule for today, and follow precedent.

      Romer v. Evans
      Lawrence v. Texas
      Loving v. Virginia

      > Minorities should not have to wait around for the majority to get their shit together

      50% of the country already supports it, what level of support do you think should SCOTUS wait for before they get *their* shit together? They’re *behind* the majority on this one, not in front of them.

      > but unless we want SSM to be a divisive issue for the next 50 yrs everyone needs to slow their role

      In 50 years this won’t even be an argument.

    • Judges worry about being on the wrong side of history all the fucking time. They worry about their legacies and how future generations will look at them and judge them.

      Also, there are a lot of reasons why abortion is a divisive topic, just saying because the court decided Roe v Wade, is a gross simplification of the issue. And really, the Court often rules on divisive topics that don’t have a large national consensus in one favor or the other. The Court had key decisions during the Civil Rights movement, which was after a good hundred years of the democratic process not working to stop inequality. But sure, we should just wait on the democratic process to magically work out.

      Also, I don’t give a shit if you’re in high school and taking class on the Constitution, that doesn’t give you any more authority on the subject than anyone else.

      • I am sorry it took me so long to reply to this. I had subject tests today that I had to study for.

        What did I type to make you think I am a greater authority on the subject than anyone else on this site? I was merely stating my point of view, which I think is important when anyone considers what I said. I’m a high school senior taking a Constitution class; I fail to see how that offends anyone. I don’t believe my comment was said in a superior tone, and if you felt my opinion was stated supercilious manner that is on you.

        I just believe that this is a state issue. I never said that a national consensus must be reached about gay marriage in order for SCOTUS to make a decision favoring it. There does not even need to be a plurality of states, and I never said that there needed to be. The attitude of the country towards marriage equality is rapidly shifting, which is why I believe the court systems do not need to be involved. Gay marriage in this country is inevitable, and If this can be worked out among the states I prefer it stay there.

        I do acknowledge that many rights have been enforced and certified by the courts; I would be a fool not to. But gay marriage has not been a viable political issue for a long period of time, and I believe it should spend more time in the state legislature.

        We just read the Constitution with different glasses, and there is nothing wrong with that. I also believe that marriage equality is not the most pressing issue facing LGBTQA Americans, and that our attention is better focused on changing the hearts and minds of people around us than running around the court system.

        “If my fellow citizens want to go to hell,” Justice Oliver Wendell Holmes once wrote, “I will help them. It’s my job.”

        • Since it has been established that marriage is a civil right that states cannot dictate for other people, saying that it is a state issue is essentially saying that gay people don’t count when it comes to civil rights.

      • Wow, way to flip your shit kd15. At least Samantha is telling us where she’s coming from which is more than I can say for most anonymous shit-stirrers on the internet.

        I haven’t finished reading all the comments on this article, but I’m a little shocked that no one has considered the implications of SCOTUS ruling AGAINST gay marriage. Imagine all the progress made in the handful of states that have legalized gay-marriage going down the shitter! I, for one, would prefer to wait it out until we in more of a position for a decisive ruling in support of gay marriage rather than being in limbo-land and hoping we don’t get screwed even worse than we already were. Rome wasn’t built in a day.

    • As has already been stated, the majority of Americans support equal marriage rights TODAY.


      Um, sorry, maybe it’s easy for you as a high school student to tell all of us to wait around for another few years, but that’s a pretty fucked up thing to consider if you aren’t lucky enough to be so young.

      Other people in the community need to be able to protect and care for their partners right NOW. Think of your fucking elders, and maybe consider some gratitude for the work they put in so that you can be all chill and removed in your constitution class.

      • That was a hurtful comment. I am grateful to all my elders who fought marched, and in some cases died so i can be out among my friends, but don’t assume that because of my youth I can’t understand the struggle of being gay. I am a gay black woman; someone died for my right to voe and I am aware of the sruggles that the communities I am apart of have gone through. I will not let someone call me ungrateful because I have a different opinion than they do.

        My mom is friends with Janet Boynes of Janet Boynes Ministries. I fear everyday of being outed to my family and being sent to reparitive theraoy, so I am not as removed as you think I am. My view on this issue my be colored by the privelege of youth, but it is not the only basis of it.

  6. > this means it will probably be years before the Supreme Court deals with these cases, if ever.

    Woah, woah, woah. They’re still under consideration for potentially the March term if and until the court either actually reschedules considering them or turns down the petitions.

    Like seriously the only thing that happened today is they decided they couldn’t knock out the decision of which cases to grant today. Which is like, pretty reasonable really, it’s a complex nest of 10 petitions.

  7. Most of what is written in this article is wrong.

    SCOTUS has not decided not to deal with the gay marriage cases. It’s really not uncommon for them to not announce whether or not they are going to take a case the same day that they conference.

    The court can overturn Prop 8 without it having a national impact. The 9th Circuit ruled that Prop 8 was unconstitutional because same sex marriage was legal in California and then became illegal for illegitimate reasons. If SCOTUS decides the case on the same grounds all it will mean is that a state cannot allow same-sex marriage and then ban it. If they deny cert then that will only apply to California, Arizona, Washington, Nevada, Idaho, Montana Alaska, and Hawaii. SCOTUS can decide the case on broader grounds, but that is far from guaranteed.

    If the Court decides the DOMA cases it is highly unlikely that they will rule in a way that immediately forces states to recognize same-sex marriages performed in other states. The part of DOMA being challenged is relates to the Federal government recognizing same-sex marriages for Federal benefits. Forcing other states to recognize same-sex marriage will probably not come for a while.

  8. I think Rachel’s palpable and understandable disappointment at not getting an outcome today has gotten the better of her. Reading the Scotusblog it sounds like they’re probably devoting more time to working out which of the various cases to take, rather than putting them on indefinite hold. Too early to let the glums takeover.

  9. Why is SCOTUS so lazy? They could have at least thrown out prop 8, it is so state specific that here is a very slim chance they will want to hear it anyway! Now that Obama is re-elected Ginsburg needs to retire (I like her, but she is looking WAY old), and hopefully Thomas or Scalia miraculously leave.

  10. Little correction here… Very first line: issue Of what?
    “The question of whether the issue of might make it all the way to the Supreme Court”

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