How should we read SCOTUS' "We pass" on gay marriage cases?

For background, see my prior posts (Oct 7 and 8 about the U. S. Supreme Court's "indecision" a week ago (has it been only a week?) in refusing to take any of the cases on overturning the bans on same-sex marriage.

It's still not clear what message they were trying to send.  Or, indeed, whether it was a consensus message or the result of a particular combination of votes that failed to reach the requisite four to agree to hear a case.    Perhaps three conservates wanted to take them and reverse the decision, joined by three liberals who didn't want it to go that way -- or vice versa.

Bloomberg News had an intesting article (Oct. 13), "The Supreme Court's Decisive Indecision.," which draws two conclusions.   (1) The court is content to let gay marriage take root throughout the country, as opposed to trying to stop it, which seems very significant;  and (2)  The court wants to avoid settling the issue in one fell swoop while it is still contention.

The article backed up this second point with the example of Brown v. Board of Education, a unanimous decision that is "unequivocal on paper yet still unrealized 60 years later."   Ruth Bader Ginsburg has made a similar point about Roe v. Wade, saying that it was prematurely decided and thus has never been accepted but new onerous restrictions are passed; and even the federal courts are inconsistent about decisions to the challenges.   In other words, the Court does well in such socially contentious matters not to get too far ahead of the American people.

That's all very well to say -- but we are dealing with matters of justice that affect the lives and legal rights and finances of real people who are living now.   They need justice now.

But back to the question of what is the Court's message in its "Decisive Indecision?"  That got more complicated later in the week, when Justice Anthony Kennedy, usually the swing vote that renders favorable gay rights rulings, acted in his role to issue emergency rulings for the jurisdiction that includes Idaho.   Idaho had asked for a stay on lifting the ban in their state, and Kennedy granted that stay.

However, a day or two later, the court as a whole voted to let the appellate courts' lifting of the ban remain in effect -- so that couples can go ahead and marry in Idaho.

Of course, Kennedy's putting a stay on implementation of a ruling, to an emergency request, might have meant only that he wanted the full court to decide.  But it is curious that Kennedy was the one to act to let a ban on gay marriage remain in effect pending appeal, while a vote of the nine means they found at least five votes to reverse his stay.    

That suggests that there is another favorable vote for gay marriage other than Kennedy and the four liberals.

It remains a fascinating game of speculation.   What we can say is that there does not seem to be a majority wanting to uphold the states' bans on gay marriage.   After years of politicians dodging the issue by saying it should be the states' decisions, SCOTUS is clearly not going that route.    Because every appellate court yet that has rendered a decision has overturned the states' decision -- and SCOTUS is letting those stand.

Ralph