Tonight in a public question-and-answer session at the University of Minnesota Law School, Justice Ruth Bader Ginsburg said the Court did not need to rush into the question of same-sex marriage because the lower courts had not yet disagreed on the issue.
Asked whether she thought the Court might take the issue up this Term, Justice Ginsburg noted that all three appellate courts to address the issue so far (the Fourth, Seventh, and Tenth) have struck down state laws limiting marriage to opposite-sex couples. She added that we are still awaiting a decision from the Sixth Circuit, which has been considering a same-sex marriage claim since oral argument on August 6. “Sooner or later,” she predicted, the Court will decide the issue. But given that there is no disagreement so far, she concluded, there is “no urgency” for the Court to take it right now. This suggests that–until there’s a circuit split–Justice Ginsburg won’t vote to grant a same-sex marriage petition this Term.
The Court is due to consider seven pending cert petitions on the issue at its conference on September 29. Given her recent comments that the Court would not “duck” the issue of same-sex marriage, it had seemed likely that she would be among those on the Court supporting review now. She is only one vote, of course: four of the remaining eight Justices could still opt to take one or more of the petitions at the September 29 or a subsequent conference.
Justice Ginsburg had multiple audiences for these comments: the students and faculty assembled before her, of course, but also the Sixth Circuit and her colleagues. If the Sixth Circuit (or another one, like the Fifth) rejects the same-sex marriage claim, as seemed likely at oral argument, there can be no doubt the Court will hear the matter this year. If the Sixth Circuit rules for same-sex marriage or remains silent, on the other hand, the Court might just wait a bit longer.