# Supreme Court \[declines to hear\] same sex marriage cases.\[plus further developments (Ed.)\] **URL:** \ **Category:** Great Debates\ **Created:** [October 6, 2014, 1:50pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544 "2014-10-06T13:50:23Z")\ **Posts on this page:** 20\ **Page:** 22
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 10, 2015, 6:11pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/421 "2015-02-10T18:11:12Z")
Why would Thomas and Scalia think they had to depend on the full court’s refusal to grant stays in order to predict their ultimate ruling? Didn’t they even read the court’s own Windsor (DOMA) ruling that made it pretty damn clear to anyone but the religionist diehards? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 10, 2015, 6:17pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/422 "2015-02-10T18:17:56Z")
Windsor doesn’t make the court’s SSM ruling clear at all. First, it was limited to the merits of a federal law, which gets less deference since the federal government has a limited role in regulating marriage. Second, as with prior SCOTUS gay rights cases the court declined to (openly) apply elevated scrutiny. ---
**Author:** ![hajario](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hajario/32/171_2.png) [@hajario](https://boards.straightdope.com/u/hajario)\ **Post date:** [February 10, 2015, 6:29pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/423 "2015-02-10T18:29:56Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Do we have the vote total on the stay requests? It’s possible some of the conservatives abstained due to conflicts. No. We know Thomas and Scalia voted for the stay because they told us. We know that there was no more than one other vote on their side because only four would have been needed. It is certainly possible that there were abstentions but do you really think that there were abstentions on all of the several stay denials? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 10, 2015, 6:34pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/424 "2015-02-10T18:34:21Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Windsor doesn’t make the court’s SSM ruling clear at all. First, it was limited to the merits of a federal law, which gets less deference since the federal government has a limited role in regulating marriage. Second, as with prior SCOTUS gay rights cases the court declined to (openly) apply elevated scrutiny. That case wasn’t about legal/constitutional technicalities, and neither is this one. The court’s Windsor ruling that equal protection applies to marriage law was as clear as it could be. ---
**Author:** ![Ambrosio\_Spinola](https://avatars.discourse-cdn.com/v4/letter/a/9de0a6/32.png) [@Ambrosio\_Spinola](https://boards.straightdope.com/u/Ambrosio_Spinola)\ **Post date:** [February 10, 2015, 6:36pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/425 "2015-02-10T18:36:52Z")
> [@hajario](#): > > No. > > We know Thomas and Scalia voted for the stay because they told us. We know that there was no more than one other vote on their side because only four would have been needed. It is certainly possible that there were abstentions but do you really think that there were abstentions on all of the several stay denials? It takes four to grant certiorari, but five to grant a stay. Case in point [Charles Warner](http://www.nytimes.com/2015/01/26/us/in-taking-up-execution-drugs-case-justices-highlight-importance-of-a-single-vote.html?_r=0). (The court refused to stay his execution, but agreed to posthumously take his case.) ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 10, 2015, 6:52pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/426 "2015-02-10T18:52:03Z")
> [@ElvisL1ves](#): > > That case wasn’t about legal/constitutional technicalities, and neither is this one. The court’s Windsor ruling that equal protection applies to marriage law was as clear as it could be. Equal protection applies to every law, and always has. The “legal/constitutional technicalities” you are glossing over are the ultimate issues that were decided in _Windsor_ and those that SCOTUS will have to decide later this year. ---
**Author:** ![hajario](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hajario/32/171_2.png) [@hajario](https://boards.straightdope.com/u/hajario)\ **Post date:** [February 10, 2015, 7:03pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/427 "2015-02-10T19:03:49Z")
> [@Ambrosio\_Spinola](#): > > It takes four to grant certiorari, but five to grant a stay. Case in point [Charles Warner](http://www.nytimes.com/2015/01/26/us/in-taking-up-execution-drugs-case-justices-highlight-importance-of-a-single-vote.html?_r=0). (The court refused to stay his execution, but agreed to posthumously take his case.) You cite says that it takes five to stay an execution. Everything that I have been reading on the legal sites that have been following this, such as Equality on Trial, have been very clear that they needed for votes in these cases. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [February 10, 2015, 7:11pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/428 "2015-02-10T19:11:34Z")
It is customary for a fifth justice to vote for a stay in death penalty cases even when there are only four voting to take cert. ---
**Author:** ![Ambrosio\_Spinola](https://avatars.discourse-cdn.com/v4/letter/a/9de0a6/32.png) [@Ambrosio\_Spinola](https://boards.straightdope.com/u/Ambrosio_Spinola)\ **Post date:** [February 10, 2015, 7:16pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/429 "2015-02-10T19:16:31Z")
> [@hajario](#): > > You cite says that it takes five to stay an execution. Everything that I have been reading on the legal sites that have been following this, such as Equality on Trial, have been very clear that they needed for votes in these cases. The rules on this seem a little unclear, so I’ll be happy to admit if I am wrong. The Supreme Court rules of practice imply that a Justice is able to issue a stay on their own without referring it to the full Court, and if I recall correctly Sotomayor did just that on some of the SSM cases out of the Tenth Circuit. Since stay requests from the Eleventh Circuit come directly to Thomas, I was a little curious as to why he didn’t just grant the stay himself if he felt that strongly about it, and when I ran across that business regarding the executions this seemed to explain the matter. (IAAL, but I don’t do much federal litigation and have never been in a Circuit Court of Appeals or higher.) ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 10, 2015, 7:17pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/430 "2015-02-10T19:17:36Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Equal protection applies to every law, and always has. > > The “legal/constitutional technicalities” you are glossing over are the ultimate issues that were decided in _Windsor_ and those that SCOTUS will have to decide later this year. Odd, then, all that EP discussion in _Windsor_ that at least seemed to form the basis of the ruling, which dismissed all the neofederalist ideological twaddle that you claim to be the ultimate issues. Odder still that EP even needed to be discussed at all, given that it applies to every law, as you so gloss over. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [February 10, 2015, 7:28pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/431 "2015-02-10T19:28:09Z")
> [@Ambrosio\_Spinola](#): > > The rules on this seem a little unclear, so I’ll be happy to admit if I am wrong. The Supreme Court rules of practice imply that a Justice is able to issue a stay on their own without referring it to the full Court, and if I recall correctly Sotomayor did just that on some of the SSM cases out of the Tenth Circuit. Since stay requests from the Eleventh Circuit come directly to Thomas, I was a little curious as to why he didn’t just grant the stay himself if he felt that strongly about it, and when I ran across that business regarding the executions this seemed to explain the matter. (IAAL, but I don’t do much federal litigation and have never been in a Circuit Court of Appeals or higher.) You have the rules right. A stay, like any other judgment or order, takes five votes. The rest are customs. Certiorari takes four votes. On big issues, stays are usually referred to the full court immediately. I have heard that Thomas is even more deferential on stays than the other justices in referring to the full court. And when the case would be mooted in the absence of a stay (many death cases), then there is usually a courtesy fifth vote. ---
**Author:** ![hajario](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hajario/32/171_2.png) [@hajario](https://boards.straightdope.com/u/hajario)\ **Post date:** [February 10, 2015, 7:29pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/432 "2015-02-10T19:29:47Z")
> [@Ambrosio\_Spinola](#): > > The rules on this seem a little unclear, so I’ll be happy to admit if I am wrong. The Supreme Court rules of practice imply that a Justice is able to issue a stay on their own without referring it to the full Court, and if I recall correctly Sotomayor did just that on some of the SSM cases out of the Tenth Circuit. Since stay requests from the Eleventh Circuit come directly to Thomas, I was a little curious as to why he didn’t just grant the stay himself if he felt that strongly about it, and when I ran across that business regarding the executions this seemed to explain the matter. (IAAL, but I don’t do much federal litigation and have never been in a Circuit Court of Appeals or higher.) Thomas could have issued the stay on his own but then the litigants are allowed to “justice shop” and find another Justice to refer it to the full court. Thomas probably didn’t want to go through all of that when he knew how it would go. ---
**Author:** ![hajario](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hajario/32/171_2.png) [@hajario](https://boards.straightdope.com/u/hajario)\ **Post date:** [February 11, 2015, 3:09am UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/433 "2015-02-11T03:09:24Z")
> [@Richard\_Parker](#): > > You have the rules right. A stay, like any other judgment or order, takes five votes. I just went to get clarification and I was incorrect. I apologize. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [February 11, 2015, 4:16am UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/434 "2015-02-11T04:16:08Z")
> [@ElvisL1ves](#): > > Odd, then, all that EP discussion in _Windsor_ that at least seemed to form the basis of the ruling, which dismissed all the neofederalist ideological twaddle that you claim to be the ultimate issues. Odder still that EP even needed to be discussed at all, given that it applies to every law, as you so gloss over. The EP discussion focused on Equal Protection of married couples…that the federal government was treating gay couples who were legally married differently than straight couples who were legally married, and that was a disparagement. Or, as the opinion put it: > [@](#): > > DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages. I think there’s a good equal protection argument to make here. And I think the same sex marriage side should win on the merits. But I don’t think that Windsor inevitably leads to that. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 11, 2015, 1:42pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/435 "2015-02-11T13:42:05Z")
A contrary ruling would be in sharp conflict with _Windsor_, would it not? Yes, it’s not inevitable that the court would rule that way, but it’s very hard to see how any of the very same people would construct a path of reasoning that direction. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [February 11, 2015, 1:51pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/436 "2015-02-11T13:51:15Z")
> [@hajario](#): > > Thomas could have issued the stay on his own but then the litigants are allowed to “justice shop” and find another Justice to refer it to the full court. Thomas probably didn’t want to go through all of that when he knew how it would go. They are? I thought it had to be the justice in charge of the circuit. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [February 11, 2015, 2:22pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/437 "2015-02-11T14:22:43Z")
> [@hajario](#): > > I just went to get clarification and I was incorrect. I apologize. Huh? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 11, 2015, 2:57pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/438 "2015-02-11T14:57:43Z")
> [@ElvisL1ves](#): > > Odd, then, all that EP discussion in _Windsor_ that at least seemed to form the basis of the ruling, which dismissed all the neofederalist ideological twaddle that you claim to be the ultimate issues. Odder still that EP even needed to be discussed at all, given that it applies to every law, as you so gloss over. The question is not whether equal protection applies. It is _how_ equal protection applies. > [@ElvisL1ves](#): > > A contrary ruling would be in sharp conflict with _Windsor_, would it not? Yes, it’s not inevitable that the court would rule that way, but it’s very hard to see how any of the very same people would construct a path of reasoning that direction. It would not. To strike down laws prohibiting same-sex marriage, SCOTUS will more or less _have_ to find that such restrictions are subject to elevated scrutiny, something it declined to do in _Windsor_. They could do this two ways: either on the basis that marriage is a fundamental right (as in _Loving v. Virginia_), or on the basis that homosexuals are the type of “discrete, insular minority” that justifies suspect classification (probably analogous to gender classifications, as in _Craig v. Boren_). Neither is a foregone conclusion, though the latter is more likely. The court could also follow its pattern of pretending to review orientation-based classifications under rational basis, but actually applying something else. If they do that their decision could go either way, but they’d probably uphold the laws. The problem with doing this is that it would lead to potentially inconsistent results. Whether a specific SSM ban not currently before the court is valid could depend on the method of passage (as in _Romer v. Evans_.) I hope that’s not too much “neofederalist ideological twaddle.” ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 11, 2015, 3:45pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/439 "2015-02-11T15:45:00Z")
> [@Really\_Not\_All\_That\_Bright](#): > > The question is not whether equal protection applies. It is _how_ equal protection applies. And there is no consistent, respectable way to avoid a blanket ruling in favor, as you point out. > [@](#): > > I hope that’s not too much “neofederalist ideological twaddle.” That isn’t what you said; instead you focused on process while excluding substance and reasoning. The ideological stuff comes from those still claiming states’ rights have standing against the feds, and that popular votes should and even do override constitutional rights. I hope you agree that’s twaddle. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 11, 2015, 3:49pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/440 "2015-02-11T15:49:42Z")
There is certainly a consistent way to avoid a blanket ruling in favor. In fact, it will probably be an inconsistent ruling if they rule in favor of the challengers, because it will be a departure from prior case law. I will welcome it, but nothing they have said before _requires_ it. I have no idea what you’re talking about in the second part of your post. Perhaps you’re confusing me with someone else posting in this thread. [Previous page](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544.md?page=21) [Next page](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544.md?page=23)