Earlier this morning, the U.S. Supreme Court denied seven cert petitions from five states, including Utah, Oklahoma, Virginia, Wisconsin, and Indiana, seeking review of rulings from the Fourth, Seventh, and Tenth Circuits striking down bans on same-sex marriage.  The High Court’s timing is uncanny because it was exactly two months ago today (August 6) that the Sixth Circuit heard oral arguments in five appeals in the battle over same-sex marriages.  We are still waiting for the Sixth Circuit’s decisions, but expect them to issue in short order (the Sixth Circuit’s average time between argument and decision is 2-3 months, although we can all agree that this is not an “average” case). 

This morning’s cert denials by the Supreme Court pave the way for gay marriages to go forward in a number of states.   And it will happen right away.  Rule 41(d)(2)(D) of the Federal Rules of Appellate Procedure states that the appellate court’s mandate must issue “immediately when a copy of a Supreme Court order denying the petition for writ of certiorari is filed.”  Sure enough, the Fourth Circuit already has lifted the stay of the mandate in the Virginia cases, while the Tenth Circuit has lifted the stay of the mandate in the Utah and Oklahoma proceedings.

Some media outlets are calling today’s cert denials a surprise given the high-profile issue involved.  But the denials are not really unexpected when you consider there has been little disagreement among lower courts over whether same-sex marriage bans are constitutional.  Perhaps the Court is waiting for a split to emerge (as we predicted in prior posts and media comments).  All eyes are therefore on the Sixth Circuit’s forthcoming decisions to see whether they will be in line with other courts or whether the Sixth Circuit will blaze a different path.  We will continue to keep close watch.