No big whoop.

The law, lawyers, and the court.
Dec. 1 2004 3:48 PM

No Big Whoop

"Big" news and pressroom snickers over the gay-marriage case.

Did something important—really newsworthy stuff—happen on gay marriage in the Supreme Court on Monday? It surely seems so. The story made Page One in USA Today, the Boston Globe, and the Baltimore Sun, it was the top story on the 6 p.m. news on ABC-TV, and the Associated Press gave it major billing (and thus legitimacy for a legion of wire news editors across the country who treat the AP as an agenda-setter). The New York Times, printing all the news that it finds fit to print, gave it a column and a half on Page 18.

That's quite a lot for a Supreme Court order that read, in its entirety: CERTIORARI DENIED: 04-420 Largess, Robert P., v. Supreme Judicial Court of MA.

Spun out of that brief order were lengthy stories suggesting that the Massachusetts Supreme Judicial Court's landmark ruling requiring marriage equality in that state for same-sex couples had survived a challenge in the nation's highest court. The Boston Globe, for one example, said the justices had been asked to "overturn the Massachusetts Supreme Judicial Court ruling legalizing same-sex marriage. …"

These stories, of course, were filled with solemn assessments of what this means for the gay-marriage debate across America, and all the usual quotemeisters—including the White House press secretary—got into the act. Some of the stories called it a "ruling" or a "decision," as if the justices had really sat down and thought about it, perhaps passing meaningful notes and pulling down from the shelves a tome or two for guidance before deciding to stay their hand—implicitly saying to the Massachusetts court: "Go in peace."

If that had been what happened, yes, it would have been big news. But there must be some mistake here; how else to explain the snickers that livened up the Supreme Court's press room on Tuesday morning? Now, mind you, there are a good many journalists who frequent that place who know how occasionally to "hype" the justices' denial of review of a case. They all know, of course, that such a denial means nothing at all, legally. Sometimes, though, a denial can be newsworthy—especially if a case looks like it had a decent chance of getting the court's attention.

This time, though, the order on Mr. Largess' case didn't clear even that first hurdle of newsworthiness. Here is what the snickerers—or most of them—were probably thinking: The justices almost certainly had never discussed this case in their private conclave the previous week, and it is a good bet that none of them even read the appeal papers; one or more law clerks did and no doubt had no difficulty telling their bosses not to waste their time on this one. Some Supreme Court reporters whose names are legend in the business did not even give the appeal a close look. (Others, like this reporter for SCOTUSblog, did give it a close read and found it to be rather interesting as a kind of law-school exam question about constitutional law, and thus deserving of a paragraph of mention but no more.)

Further: To reporters who read the case, it was far from clear that Mr. Largess (who is vice president of the Catholic Action League of Massachusetts) and the 11 members of the state's Legislature who joined in his appeal had any legal right to bring their case in the first place. They were not appealing the Massachusetts Supreme Court ruling at all. After that ruling came down in November last year, no one appealed; there was no place to appeal, since the ruling was based solely on state law, and no federal court—including the U.S. Supreme Court—can or will second-guess such a ruling.

Largess was a fresh, new case—trying to fashion a federal constitutional claim that the anti-gay-marriage challengers hoped would make the issue Supreme Court eligible. In essence, what these plaintiffs were saying was that, somehow, the federal courts must find a way to curb "activist" judges who are running amok on the gay-marriage question. But the specific constitutional issue they framed—a claim that the state court had denied them a "republican form of government"—was one that the Supreme Court had considered only once in the past 90 years, and on that occasion it did not even decide the question in a final or definitive way. Justices and constitutional law scholars do not stay awake nights musing about the meaning of the "Guarantee Clause" upon which this appeal stood. Further: This case had never even gone to trial in the lower federal courts; it arose on a motion for a preliminary court order to block the implementation of the state court ruling before that decision took effect in May of this year. There may be more to play out in this case in lower courts.

Oh, and yet another reason this was not "news." The people of Massachusetts still have a chance to undo the gay-marriage ruling by their state court. As the state's attorney general told the Supreme Court in responding to the appeal: The state court ruling "leaves fully intact the ultimate control of the people of the Commonwealth over their government and their laws—including control of whether same-sex marriage should be permitted in the Commonwealth." In other words, the AG was saying, the "republican form of government" appears to still be functioning just fine in Massachusetts.

It is often said around the Supreme Court that no one should read anything into a simple—and usually unexplained—denial of review of a new case. There can be a host of reasons why a case gets passed up, and no one outside the court can ever be sure which, if any, reason was decisive. A denial of review can have political or social consequences, of course, and that might give it some news value. But, except for the agenda-driven comments by those quoted in this week's stories about Mr. Largess' case, it is not clear that this denial moved the gay-marriage debate one millimeter in either direction.

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