Guest Opinions

Guest Opinion: Ball is in justices’ court on gay marriage

“Game theory is the study of how people behave in strategic situations, or how a person, when choosing among alternative courses of action, must consider how others might respond to the action he or she takes.” — N. Gregory Mankiw, Professor of Economics, Harvard University

Some describe game theory as the study of strategic decision-making. Others describe game theory as the study of conflict resolution and cooperation between “intelligent rational decision-makers.”

With game theory in mind, consider the U.S. Supreme Court’s recent arguments on the Sixth Circuit’s decision that same-sex marriage and recognition bans were constitutional in Kentucky, Michigan, Ohio and Tennessee. The High Court considered two questions. First, must states allow same-sex marriage? Second, must states recognize same-sex marriages lawfully performed in other jurisdictions?

Last October, the court declined to review the Fourth, Seventh and Tenth Circuits’ decisions that same-sex marriage bans were unconstitutional in Indiana, Oklahoma, Utah, Virginia and Wisconsin. Some argued the court’s denial signaled those circuits got it right; others denied this supposition. Notwithstanding, the other states in those circuits that were not involved in the litigation (including Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming) also began to perform same-sex marriages.

After the court’s (non)decision, many questioned whether any circuit would uphold a same-sex marriage ban and create a “split” among the circuits. Uniformity could have led to same-sex marriage nationwide, albeit by fiat of federal lower courts — a controversial notion to be sure. Attention soon turned to the Sixth and Ninth Circuits, both of which had already held oral arguments but had yet to produce an opinion. The day after the court declined review, the Ninth Circuit ruled marriage bans in Idaho and Nevada unconstitutional. That ruling applied to marriage bans in Alaska, Arizona, and Montana.

In January, the court found itself duty-bound to decide the issue after the Sixth Circuit created the coveted “circuit split” on the issue of same-sex marriage. The Fifth Circuit subsequently delayed ruling on pending cases from Louisiana, Mississippi and Texas. The Eighth Circuit delayed arguments on cases from Arkansas, Missouri and South Dakota. The Eleventh Circuit also delayed arguments, but did not stay orders from federal district courts to begin performing same-sex marriages in Florida and Alabama — in Alabama this led to a controversy that captured national attention. (It should be noted that Fifth and Eleventh Circuits share a distinguished past as the “original” Fifth Circuit, which decided many forward-moving race discrimination cases before a 1981 reconfiguration.)

Undoubtedly the focus is now on the court’s pending decision, which is expected in June. One could argue that the “writing” is virtually “on the wall” for same-sex marriage. At the end of 2013, same-sex couples were allowed to marry in approximately 17 states. By the start of 2015, same-sex couples in approximately 20 additional states could also marry, most as a result of the court’s declination to review prior circuit court rulings striking down marriage bans.

The court’s nine intelligent and rational decision-makers currently have three options. First, if marriage bans are unconstitutional, so too are recognition bans. Second, if marriage bans are constitutional, recognition bans are not. Finally, neither marriage nor recognition bans are unconstitutional.

Any opinion in line with the latter two options may cause debate on the rationality and intelligence of declining to review opinions from the Fourth, Seventh, and Tenth Circuits. That the nation should debate this question is a testament to our constitutional democracy.