The Court watchers are treating the rejection of the writs here as a “tacit win to gay marriage” on the theory that it means that if and when the Court chooses to confront the issue, a majority of states will have sanctioned same-sex marriage, making it more likely that the Court will accept the argument that the Constitution forbids limiting the institution of marriage to couples of the opposite sex. [3]
This predicted dynamic was evident in the Court’s handling of laws requiring routine DNA collection for law enforcement databases. No appellate court ever struck down a law requiring convicted offenders to provide samples, and for some thirty years, the Court invariably denied petitions for review in those cases. Only after Maryland’s highest court essentially invalidated that state’s law providing for DNA collection on arrest did the Supreme Court step in. By that time, every state had a DNA database for convicted offenders, and a majority had extended them to require pre-conviction DNA sampling. Every state signed an amicus brief urging the Court to uphold the practice. The Court split 5–4 on the constitutionality of pre-conviction DNA testing. Had the states and the federal executive branch not presented so unified a front in favor of expansive DNA collection, the outcome could have been different. [2]
References
- Amy Howe, Today’s Orders: Same-sex Marriage Petitions Denied, SCOTUSblog, Oct. 6, 2014, 10:41 AM, http://www.scotusblog.com/2014/10/todays-orders-same-sex-marriage-petitins-denied/
- David H. Kaye, Why So Contrived? DNA Databases After Maryland v. King, 104 J. Crim. L. & Criminology 535 (2014), available at http://ssrn.com/abstract=2376467
- Adam Liptak, Supreme Court Delivers Tacit Win to Gay Marriage, N.Y. Times, Oct. 7, 2014, at A1, http://www.nytimes.com/2014/10/07/us/denying-review-justices-clear-way-for-gay-marriage-in-5-states.html
- Robert M. Yablon, Justice Sotomayor and the Supreme Court’s Certiorari Process, 123 Yale L.J. F. 551 (2014), http://yalelawjournal.org /forum/justice-sotomayor-and-the-supreme-courts-certiorari-process.html
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