Why the Supreme Court Might Agree to Hear a Same-Sex Marriage Case After All

Last month, the Supreme Court surprised the national news media by refusing to hear any of the seven same-sex marriage cases that had been pending.

Following that denial of review, the status of same-sex marriage appears to be based on an odd sort of federalism.

If you live in a region of the country governed by a federal appeals court that has found a constitutional right to same-sex marriage, you are free to enter into a same-sex marriage — even if your state recognizes only traditional marriage. For example, same-sex marriage is now legal in the areas governed by the U.S. Court of Appeals for the 4th Circuit, which includes Virginia, North and South Carolina, Maryland and West Virginia.

Certainly, the court decisions finding a constitutional right to same-sex marriage are faulty. The Supreme Court’s 1972 summary decision in Baker v. Nelson is, formally at least, still good law.

That decision — which implicitly held that there is no federal constitutional right to same-sex marriage — was not overturned by last year’s Windsor v. United States decision.

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