Confusion and surprise mark the high court’s new term


The Supreme Court kicked off its new term with some drama on the same-sex marriage front, and a bit of confusion mixed into the proceedings.

By tradition, Chief Justice John Roberts — joined by his eight colleagues — took to the bench at 10 a.m. and announced the end of the old term and the start of the new, welcoming new lawyers to the court’s bar and holding a one-hour argument on a search and seizure case.

But many reporters and court observers were downstairs, preoccupied trying to make sense of a surprise move. In brief orders, the justices without explanation announced they had rejected appeals from five states seeking to keep their bans on same-sex marriage in place. Those states are Utah, Oklahoma, Virginia, Indiana and Wisconsin.

The practical effect means gay and lesbian couples in those states could soon become legally wed. Virginia announced it would start issuing marriage licenses within hours of the court’s action.

And because the lower court rulings in these cases are not being reviewed by the Supreme Court, that means similar same-sex marriage bans in six other neighboring states could soon fall in coming weeks. Those states are Colorado, Kansas, Wyoming, West Virginia, North Carolina and South Carolina.

Almost no one predicted the justices would do what they did. Many legal analysts and advocates on both sides of the marriage fight suggested the court would either jump in now and decide the constitutional equal protection questions — or put off consideration of those appeals and the larger issues indefinitely.

That is what most members of the press thought when the court issued its order list Monday, a summary of the cases rejected for review. Those appeals from the five states were not on the paper copies given to journalists promptly at 9:30 a.m.

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Turns out that the 81-page orders list was missing 30 pages — including the section where the same-sex marriage appeals were noted. That was a simple printing error, but some reporters went upstairs to hear oral arguments in the second-floor courtroom, thinking no action had been taken on same-sex marriage.

By the time the complete orders came out, and the marriage cases were suddenly noted, chaos (and some cursing) ensued as reporters rushed to get the news out. The complete orders list was posted online on the court’s websites several minutes later for the general public to scan.

The nine-member bench has the complete discretion to accept or reject any petition presented to it, and the justices are under no deadline to make those calls.

The fact they rejected for review the appeals from the five states now was a clear signal the court was not ready to get involved. Nearly every federal and state court in the past 15 months has struck down same-sex marriage bans.

One scenario was that the court wants to take a go-slow approach with the marriage equality debate, concluding that since lower courts are all but in agreement, the justices need not get involved at this point. It seems inevitable the issue will be decided. The court’s deliberate move to stay out for now makes this a question not of if, but of when.