Nice Try

Opponents of same-sex marriage are trying to get the Court to review their recent win against SSM in the district court in Nevada, skipping any consideration of the case in the Ninth Circuit.  In their petition for certiorari before judgment, they argue:

Of the “marriage” cases now before this Court, this case is optimal for resolving the fundamental issue for several reasons. This case is the only one that cannot be resolved without answering the fundamental issue. Further, this case has developed most comprehensively and thoroughly the societal interests justifying preservation of marriage’s man-woman meaning; the record here will thus be most helpful in judicial review. Moreover, important collateral issues that may be the basis for resolving the other pending marriage cases will be more prudently and intelligently answered after this Court resolves the fundamental issue. Finally, this case is free of standing issues.

I expect the petition to be denied for at least three reasons.  First, granting review before judgment is an exceedingly rare act reserved for the most compelling circumstances. Second, unlike the pending petitions in the Prop 8 case and in the Defense of Marriage Act cases, the decision below in the Nevada district court upheld the state marriage limitation. And finally, the fact that the Nevada case presents the “fundamental issue” of whether same-sex couples are constitutionally entitled to marry actually cuts against immediate review. The Court usually likes to move in a more minimalist fashion, reserving the largest issues for resolution after more development in the lower courts.  With the DOMA cases and the Prop 8 case, it can issue more cautious and theoretically less ambitious opinions to resolve those matters either way, leaving the underlying question of marriage for another time.

The effort by gay-marriage opponents to get the fundamental issue before the Court now is understandable strategically.  Gay-marriage opponents are now on a losing streak, both in courts and in elections.  Time is not on their side.  Delay is not their friend. The trend lines of public opinion are not pointing in their direction.  And President Obama’s reelection is unlikely to bring them new allies on the court.  The recent win in the Nevada district court, albeit in a remarkably rhetorical and shallow opinion, helps interrupt the narrative of inevitable victory for same-sex marriage around the country.  The Supreme Court is unlikely to accept arguments right now for the immediate nationwide imposition of same-sex marriage, a fact known by supporters and opponents alike. Witness the opposition of the Prop 8 litigation team to certiorari in the Perry case, a win limited on its face to California, which is well short of their initial stated goal to bring SSM to the whole country via their lawsuit. The Perry team can count votes on the Court and the votes aren’t there for a nationally applicable pro-SSM ruling.  But SSM opponents can count votes, too.  And that’s precisely why they would like the “fundamental issue” decided now, with the current justices as the deciders.

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