A naive thought about the Supreme Court and same-sex marriage

February 15, 2014

Several people have observed the unanimity in recent federal-court decisions so far about same-sex marriage. Since Windsor, we have not yet had a court uphold a state’s same-sex marriage laws, and I am honestly not sure that we will in the future. This makes me wonder — need the Supreme Court really get involved?

I made the same point about the DOMA litigation before Windsor. There the issue was complicated by the serious jurisdictional problems, but I also wondered if there was really a need for the Supreme Court to take the case in the absence of a circuit split.

I realize this suggestion may seem hopelessly naive. Everybody knows that the Supreme Court will take one of these cases anyway, and I assume that most people think that is a good thing. But if there is unanimity among the lower courts, maybe the Supreme Court will not do any good by stepping in.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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