//  6/27/17  //  Commentary

Yesterday, in Pavan v. Smith, the Supreme Court invalidated an Arkansas law discriminating against same-sex couples with respect to birth certificates. Its per curiam opinion has been widely misinterpreted as demonstrating that Chief Justice Roberts has accepted (or resigned himself to) Obergefell. Respectfully, that interpretation is incorrect. Pavan tells us nothing about the Chief's position on Obergefell.

For quick background on the Arkansas law at issue in Pavan, check this NYT story or this SCOTUSblog page. In short, after describing the operation of this discriminatory law, the Supreme Court concluded:

Obergefell proscribes such disparate treatment. As we explained there, a State may not “exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” 576 U. S., at ___ (slip op., at 23). Indeed, in listing those terms and conditions—the “rights, benefits, and responsibilities” to which same-sex couples, no less than opposite-sex couples, must have access—we expressly identified “birth and death certificates.” Id., at ___ (slip op., at 17). That was no accident: Several of the plaintiffs in Obergefell challenged a State’s refusal to recognize their same-sex spouses on their children’s birth certificates. See DeBoer v. Snyder, 772 F. 3d 388, 398–399 (CA6 2014). In considering those challenges, we held the relevant state laws unconstitutional to the extent they treated same-sex couples differently from opposite-sex couples. See 576 U. S., at ___ (slip op., at 23). That holding applies with equal force to [the challenged Arkansas birth certificate law]. 

The Opinion of the Court was "per curiam." Put simply, this means that it was unsigned: no single justice is listed as its author and there is no explicit indication of who joined the opinion. Rather, the Supreme Court itself is the author (whatever that means). The Court regularly issues per curiam opinions when it decides cases on its shadow docket, without full briefing and argument. 

Now, we're not totally in the dark. Thanks to a dissent filed by Justice Gorsuch and joined by Justices Thomas and Alito, we know that the Court's decision was not unanimous. At least three justices (those three) would have reached a different outcome.

So let's review. There are nine justices. It takes five of them to constitute a majority. We know that three justices dissented and we know that the majority opinion was issued per curiam. Can it be inferred that Chief Justice Roberts joined the majority?

No, it cannot.

In principle, a justice can disagree with a per curiam—either on the merits, or as a procedural matter—but decline to publicly note that disagreement. There are many possible reasons for such a "secret dissent": for instance, to conceal one's views from the public and thereby retain future flexibility; as a display of good will to the majority or the institution as a whole; or to avoid needlessly creating the appearance of conflict.

Further, if a shadow docket case is decided five to four, a justice might conceal his dissent to avoid raising the question why the four dissenting justices didn't seek to insist on granting certiorari and holding full merits proceedings. (Indeed, part of the answer to this question is that in some circumstances, a dissenter might prefer a narrow summary reversal to the possibility of a much broader decision after oral argument.) There are few recent examples of publicly-identified five to four per curiams, though they do exist and raise a number of intriguing questions.

In Pavan, it is likely that Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan voted to invalidate the Arkansas statute. After all, they comprise the original Obergefell majority. The Chief Justice, in contrast, wrote an impassioned dissent from Obergefell saying "the Constitution has nothing to do with it"—and then read that dissent from the bench (the only time he has ever taken that dramatic step). It is hardly self-evident that, merely two years later, he joined a summary reversal applying Obergefell

Accordingly, we should not conclude that the Chief Justice has accepted Obergefell as stare decisis until we are presented with crystal clear evidence of that development. Pavan does not afford such evidence. Rather, it tells us nothing: the Chief could have been in the majority (heck, he could have written it), or he could have dissented without publicly noting his disagreement. It is not hard to imagine reasons why, if he did dissent, the Chief would have preferred to keep his position concealed from the outside world.

When it comes to the Court, it's better to accept uncertainty than to declare major changes where they may not have occurred. 

Follow Joshua on Twitter: @JoshuaMatz8

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