Following the Supreme Court’s decision this week to deny review in the marriage equality cases, SCOTUS Blog hosted a thoughtful symposium on the future of marriage-equality litigation, including a pair of posts arguing the relative merits (or deficits depending on your point of view) of the Supreme Court’s actions.

Writing in support of the Court, John Neiman of Maynard, Cooper and Gale, PC, argues that, with a national consensus emerging out of the lower courts on what has traditionally been a thorny issue of social policy, there may be no reason for the Supreme Court to expend its political capital simply for the sake of having the last word:

It is not usually the Court’s job to address questions whose answers are so clear that all the lower courts agree on them. The Justices also tend to shy away from sensitive questions of social policy when they can. And although the current Court undoubtedly set the stage for all these lower-court rulings two terms ago in Windsor, there still would be something refreshing – something modest, even – about these nine Justices recognizing that on this particular question, at this particular time, the country doesn’t particularly need their input.

Countering Mr. Neiman, Professor Suzanne Goldberg with Columbia law school observes that while the decision may make pratical sense, it still leaves many same-sex families operating under a hotchpotch legal framework that–even if it ultimately leads to national marriage equality–will result in confusion and pain in the near-term:

But however rational, an explanation for the Court’s cert. denial does not address the depressing result for many same-sex couples who had hoped for an end to the harms they suffer by being treated as legal strangers in their home states. And, of course, these harms are not limited to the couples themselves. In Windsor, Justice Kennedy famously invoked the harms – both financial and dignitary – to children whose parents cannot marry or have their marriages recognized. In addition, governments and businesses now know that their constituents and employees will continue to suffer under the nation’s patchwork approach to marriage rights for the foreseeable future.

Though I  find Prof. Goldberg’s arguments compelling, Justice Ginsberg has rightly made the point that the right answer at the wrong time may still be the wrong answer, or at least an answer guaranteed to fuel future litigation and conjure up a political maelstrom (a la Roe v. Wade).  Given the truly astounding progress made on this issue in just the last four years–presented by the Wall Street Journal in infographic form and confirmed just yesterday in the 9th Circuit’s decision in Sevcik v. Sandoval –SCOTUS may well be right in concurring with Falstaff that discretion is the better part of valor.

Thanks to both Prof. Goldberg and Mr. Neiman for sharing their insight.  Now we wait on the 6th Circuit.

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