In a turn of events that caught many Court-watchers off guard, the Supreme Court today denied review of the seven pending cases challenging state prohibitions on same-sex marriages. In recent weeks, a consensus seemed to be emerging among commentators that this was the Term in which the Court would return to the same-sex marriage fray—and this time the justices would squarely face the big issue: whether the Constitution required states to recognize same-sex marriages. This prediction may still come true, but now it all seems to depend on what happens in the Sixth Circuit Court of Appeals, which is currently deliberating on challenges to same-sex marriage bans in four states (Kentucky, Michigan, Ohio, and Tennessee). All the cases the Court refused to review involved federal appeals courts that had struck down same-sex marriage bans. If the Sixth Circuit breaks from this pattern and upholds a same-sex marriage ban, we will have a “circuit split,” which generally ensures that the Supreme Court will feel compelled to step in and decide the issue.
So what is the three-judge Sixth Circuit panel likely to do? Those who listened to oral arguments in the cases saw a closely divided panel, with most predicting the court would uphold the same-sex marriage prohibitions. Whether today’s denials of certiorari at the Supreme Court might influence the judges on the Sixth Circuit is anyone’s guess. But what does seem pretty certain in light of today’s events at the Supreme Court is that a Sixth Circuit decision upholding gay marriage bans would be short-lived. The Supreme Court will surely overturn any appeals court ruling that breaks from the pattern that it has tacitly, but clearly, approved of today.