Should the Sixth Circuit certify the central constitutional questions in its marriage cases to the Supreme Court?

Suppose you are a judge on the United States Court of Appeals for the Sixth Circuit and you believe both (1) that there is no constitutional right to same-sex marriage, and also (2) that five Justices on the Supreme Court of the United States are prepared to hold that such a right exists, how should you vote on the same-sex marriage appeals currently pending before your court?

This very well may be the question that Judge Sutton and Judge Cook are asking themselves today. To be sure, today is not the first day they would have asked this question. By now, tentative votes have been cast, opinion drafts have been written, and much work has been done on the appeals argued before their three-judge panel (with Judge Daughtrey as the third). But the question may appear differently to these judges now than it appeared before the Supreme Court denied certiorari yesterday in similar cases from the Fourth, Seventh, and Tenth Circuits. 

Before yesterday's certiorari denial, the judges' duty to decide based on their best legal understanding, as they would decide any other appeal, seemed plain. But yesterday's certiorari denial calls into question the Supreme Court's willingness to do the same.

The question of a constitutional right to marry a person of the same sex is both important and unsettled. And surealy at least one of the cases in which the Court denied a petition for certiorari would have been a suitable vehicle, legally, for resolving this question. But at least six of the Justices may believe that the American people are not ready for the "yes" answer that five are likely poised to give. That is the reason some observers have given for the unwillingness of the Windsor five to vote for certiorari. Noah Feldman, for example, has written that "[t]he great worry of the Supreme Court – or at least of Justice Kennedy -- is that a premature gay-marriage decision would produce the kind of substantial public disagreement that followed Brown v. Board of Education and Roe v. Wade." And Dahlia Lithwick has suggested that, lurking beneath the surface of yesterday's certiorari denials, is at least some Justices' "fear that they need to time these marriage decisions around some magical moment in the ebb and flow of public opinion." Geoffrey Stone has made a similar suggestion.

Whether framed in terms of fear of backlash, or understood as good care and feeding of a living Constitution, this kind of thinking is inappropriate for shaping the institutional approach of the federal judiciary to the issue of same-sex marriage. (On this, I agree with Lithwick and Stone, with whom I often do not agree on matters of culture-war constitutionalism.) 

According to an Associated Press report from a few weeks ago, Justice Ginsburg has signaled one-way urgency on the issue, specifically mentioning the pending Sixth Circuit's pending appeals:

She said "there will be some urgency" if [the Sixth Circuit] allows same-sex marriage bans to stand. Such a decision would run contrary to a legal trend favoring gay marriage and force the Supreme Court to step in sooner, she predicted.

She said if the appeals panel falls in line with other rulings there is "no need for us to rush."

This kind of thinking makes the enterprise of constitutional law seem like a game of tactics and strategy. I'm inclined to think that the Sixth Circuit should not play along and should instead send the issue directly to the Supreme Court by certifying questions. Congress has long provided such a path to Supreme Court review, now codified at 28 U.S.C. 1254(2). This would encourage the Supreme Court to have the courage of its constitutional convictions, and would provide the type of expeditious ruling that all the parties to the pending cases deserve.

Constitutional law is not poker; and neither the parties nor the lower courts should be played by the Court. Yet it sometimes feels as if the Court is playing not only them, but all of us. 

The Supreme Court has disfavored certification, stating that "[i]t is ... the task of a Court of Appeals to decide all properly presented cases coming before it, except in the rare instances, as for example the pendency of another case before this Court raising the same issue, when certification may be advisable in the proper administration and expedition of judicial business." United States v. Wisniewski, 353 U.S. 901, 902 (1957). Although I have not fully thought through the question, this appears to be one of those "rare instances ... when certification may be advisable in the proper administration and expedition of judicial business." Id. If a panel majority is prepared to find a constitutional right to same-sex marriage, then certification would be inappropriate; the court should just rule on the merits and vindicate its perception of the rights of the parties before it. But if a panel majority believes both that there is no such right, and that the Supreme Court will say that there is, "the proper administration ... of judicial business" is the "expedition of judicial business."