Skip to main content
Part of complete coverage from

How Supreme Court's non-decision helps gay marriage

By Jeffrey Toobin
updated 9:35 PM EDT, Wed October 8, 2014
STORY HIGHLIGHTS
  • Jeffrey Toobin: Decision to let same-sex marriage rulings stand has big impact
  • 5 states with cases before court will allow same-sex marriage; others likely will, too, he says
  • Toobin: Liberal, conservative blocs couldn't count on Kennedy swing vote, perhaps
  • Toobin says the decision buys time; it may sway Kennedy if more states get equality

Editor's note: Jeffrey Toobin is CNN senior legal analyst and author of "The Oath: The Obama White House and the Supreme Court." The opinions expressed in this commentary are solely those of the author.

(CNN) -- Same-sex marriage will be the law of the land -- inevitably but not immediately.

That's the message of the Supreme Court's decision today to let stand five federal appellate court rulings that recognized a constitutional right for gay people to marry. The practical effects of today's non-decision are considerable. At a minimum, it means that the five states whose cases were before the court -- Utah, Oklahoma, Virginia, Wisconsin and Indiana -- should allow same-sex marriage immediately.

Jeffrey Toobin
Jeffrey Toobin

In addition, the states covered by the circuit courts that include these states will almost certainly now allow same-sex marriages as well. This includes the Fourth Circuit, covering Maryland, Virginia, West Virginia, North Carolina and South Carolina; the Seventh Circuit, including Illinois, Indiana and Wisconsin; and the 10th Circuit, which covers Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

So for a non-decision, today's non-ruling has a big impact.

The justices never explain why they decline to take a case, but it's possible to offer some informed speculation. It takes only four (of nine) votes for the court to hear a case. So why didn't four justices vote to hear the challenges to the same-sex marriage ban?

The court is polarized, with four conservatives (Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito) and four liberals (Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan), with Anthony Kennedy holding the balance of power, especially on gay rights issues.

It's possible that neither the liberal nor the conservative bloc felt confident enough of Kennedy's vote to risk letting him decide the case. So better to kick the can down the road.

SCOTUS: Same-sex marriage, speech, beards
Virginia's gay marriage ban overturned

The conservatives have a special reason for delay. Ginsburg, at 81 the oldest justice, will probably leave during the next president's term. A Republican president would replace Ginsburg with a solid conservative vote and make Kennedy's vote irrelevant. So waiting might be an appealing option for them.

The liberals had their own reasons for delay. Same-sex marriage has marched with great speed across the country. Today's non-decision means that more than half the states, with well more than half the population, have marriage equality. Those facts create their own momentum. More time equals more states, which might (the theory goes) make Kennedy's vote easier to get a year from now.

But for now, the state-by-state battles continue. As a result of today's decision, there will not be a 50-state resolution any time soon. But the direction of the country, if not the court, is clear, and that's more important than any Supreme Court decision.

Read CNNOpinion's new Flipboard magazine.

Follow us on Twitter @CNNOpinion.

Join us on Facebook.com/CNNOpinion.

Part of complete coverage on
updated 8:51 AM EST, Wed December 31, 2014
Pilot Bill Palmer says the AirAsia flight had similarities to Air France 447, which also encountered bad weather
updated 8:29 AM EST, Wed December 31, 2014
Poverty isn't the only reason why so many parents are paying to have their child smuggled into the United States, says Carole Geithner
updated 11:49 AM EST, Wed December 31, 2014
Michael Rubin says it's a farce that Iranian Supreme Leader Ali Khamenei posted tweets criticizing U.S. police
updated 1:40 PM EST, Wed December 31, 2014
Ron Friedman says your smartphone may be making you behave stupidly; resolve to resist distractions in 2015
updated 8:32 AM EST, Tue December 30, 2014
Artificial intelligence does not need to be malevolent to be catastrophically dangerous to humanity, writes Greg Scoblete.
updated 8:27 PM EST, Fri December 26, 2014
The ability to manipulate media and technology has increasingly become a critical strategic resource, says Jeff Yang.
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT