On Monday, the U.S. Supreme Court shocked the hell out of everybody when they declined without comment to hear any of the cases brought before them appealing state bans on gay marriage in Virginia, Oklahoma, Utah, Wisconsin and Indiana. The move made gay marriage legal in those states, but it left Texas and other states in limbo on the issue. It was also the thing no one was expecting from the nine.
"It was a bit of a surprise," Aaron Bruhl, a professor of Constitutional law at the University of Houston, says. "Ordinarily, the court doesn't hear cases when there isn't some clear division in the lower courts, but, given the importance of the question, many people expected they would take this on even in the absence of division."
Of course there was plenty of theorizing about why the justices decided to continue to dodge the whole thing. Were they waiting for more states to make gay marriage legal? Were they just not feeling controversial this term? Were they waiting for one or two of the justices to drop or retire in the hopes that the vote would change?
"It's impossible to know what they are thinking," Bruhl says. "There's a possibility they're just waiting until same-sex marriage is legal in a majority of the country and then they can come in and do cleanup. That's something they've done in the past on occasion when there have been momentous social changes. Often they don't want to get out too far in front of national opinion so they wait for an issue to develop before they rule."
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Meanwhile, all of this means absolutely nothing to Texas, legally speaking. The justices lack of comment set no legal precedent, Bruhl says. The sidestepping of the issue does mean that gay marriage will become legal in three federal appeals court districts, according to the New Orleans Times-Picayune, but everybody else has been left to work it out on their own, including Texas.
The ban was previously struck down in the Texas case, De Leon v. Perry. The Texas case is currently awaiting a hearing with the Fifth Circuit Court of Appeals. That's rough enough since the Fifth Circuit is known for being just a bit more conservative in their rulings than other courts, but it may take even longer to actually get the Fifth Circuit judges to rule on the issue since they have tied a gay marriage ban in Louisiana (in that case the ban was upheld) to the Texas case. "Consolidating the two cases effectively slowed Texas down. A lot," Bruhl says.
One of the Texas plaintiffs actually filed a motion to expedite the oral arguments of the trial on Monday, Bruhl says. The case could be heard by November if the Fifth Circuit goes along with the idea. If the Fifth Circuit should decide in favor of the ban, quickly, the Supreme Court could finally have that lower court indecision they so often prefer. Of course, the Supremes could also just let the Fifth Circuit legal process take it's time, even though the legal process is snail-like in its slowness.
Either way, the Supremes haven't dodged the issue forever, Bruhl says. "The Supreme Court is going to continue to have opportunities to hear a case on this issue," he says. "No, this isn't nearly over yet."