Originally Posted by poweRob
This is where, IMHO, that the SCOTUS screwed the pooch. After the conference of the 29th they had 3 options:
1. Accept a writ,
2. Reject a writ,
3. Carry over the writ to a later conference.
Accepting the writs would have left the "Status quo" in place until a ruling is issued, rejecting the writ(s) means that the Stay they issued was lifted, carrying over the writ would have also maintained the "status quo" until they accepted or rejected a writ.
The problem is that by choosing to reject the writs, the stay is lifted and Civil Marriages are allowed to proceed within those jurisdictions. So there were 19 states prior to Monday. Over the next couple of months that number increases to 30 (because of the stay being lifted) and that is likely to rise to 36 (if no permanent stay is issued based on the 9th Circuit Courts ruling).
That means means there will be a surge in SSCM's in those new states during the period while it is legal to marry. Now if the 6th Circuit issues a ruling that uphold the ban - that generates a "split" in the Circuit Court rules which the SCOTUS will have to address. But since Civil Marriages will have been active in 36 States it would be a huge propblem if the court then later rules in a manner that would overturn the 10th, 9th, 7th, and 4th Circuit Courts and upholds the 6th.
The 6th had already heard oral arguments and was due for a ruling at any time. It would have been much better for the SCOTUS to have used the "Carry Over" option to a later conference to make a decision.
Interesting to note, at least one of the "conservative" Justices (Roberts, Alito, Thomas, or Scalia) had to have voted with the liberal wing and Kennedy to deny review. The conservative Justices alone have the numbers to have forced a carry over if they choose, so at least one voted to reject and allow SSCM's to start now.