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.