The United States Supreme Court has issued its order denying to grant the petitions for certiorari to review the same sex marriage decisions by the various Courts of Appeal. The 7th Circuit had issued its opinion written by Judge Posner which upheld District Court Judge Young’s opinion issuing an injunction which nullified Indiana’s ban on same sex marriages.
Following an opinion by the Court of Appeals, the Clerk of the Circuit Court issues a mandate (See Fed. R. App. Proc. 41). This certifies the opinion to the lower court whose decision was under review. The Court of Appeals issued a stay which prevented the Clerk from issuing the mandate. The terms of that stay says that it terminates automatically if the Supreme Court denies the petition for certiorari. That has happened. Therefore, the stay on the 7th Circuit Clerk has been lifted. The 7th Circuit Clerk is now, I believe, free to issue the mandate, certifying the opinion to the lower court. That should probably happen as soon as the 7th Circuit Clerk can process the paperwork. Once that happens, Judge Young’s initial injunction will resume and Indiana’s prohibition on same sex marriages will be nullified.
This was the most likely of all outcomes from the petitions. Lyle Denniston’s ruminations on the decision are good (over at SCOTUS BLOG). I always thought the larger argument was that the Chief Justice knew which way the law was going and, as he has shown, wasn’t going to pull his court into the fray. CJ Roberts’ political adeptness of keeping the court out of “politics” has been good recently and looks to maybe be his most important influence – so far. With the four serious dissents in Windsor, we can only assume the Chief did some behind the scenes work here to keep the Supreme Court above the fray and allow the state’s to decide this for themselves as the previous Same-Sex Marriage cases foreshadowed.
I also wonder if Roberts kept the court out of it because the conservative side could not find a plausible legal argument to stop marriage equality. Roberts certainly did not want to go down in history as Chief Justice of the court that made same-sex illegal in the U.S. Also, could the conservative justices be hoping another circuit might find their argument for them?