With the federal 10th Circuit Court of Appeals decision declaring Utah’s ban on same-sex marriage unconstitutional, it’s time to consider the possibility the U.S. Supreme Court will never take-up an appeal. It takes four out of the nine justices to hear an appeal in the first place. Traditionally, the court won’t hear an appeal from a Federal Circuit Court of Appeals when it doesn’t contradict other Appeals Courts’ rulings on the same subject.
There are 12 Circuit Courts of Appeal. It’s possible, if all 12 of them declare bans on same-sex marriage unconstitutional, there won’t be four justices willing to hear a final appeal.
Justice Scalia has prophesized, in previous dissents, including last year’s decision declaring DOMA unconstitutional, it will lead to declaring a constitutional right to same-sex marriage. He’s right, and why would Scalia want to be one of four justices granting a hearing on an appeal that would likely fulfill his previous warnings? Justice Anthony Kennedy, on the other hand, has wanted to be cautious in how far he goes on the issue without looking like he’s ahead of both public and political opinion.
The members of the Supreme Court may feel the lower courts have done their work for them, and leave it alonet.
Steven L. Kendall
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