It takes four votes for SCOTUS to agree to hear a case. There were, interestingly, no recorded dissents from this denial.
It is clear that Scalia, Alito and Thomas are opposed to court-imposed gay marriage, and Roberts probably is as well. It is equally clear that Kagan, Ginsburg and Sotomayor favor it, and Breyer probably does as well. So Kennedy will be the deciding vote and, while he has favored gay rights in a number of cases, he hasn't spoken to the gay marriage issue yet.
My reading of the 9-0 vote to deny cert. is that neither camp is sure what Kennedy will do, and no one wants to force that issue while it can still be avoided.
I guess there’s no split in the Circuit Court of Appeals yet, thus no real reason to get involved. If the 5th or 11th Circuit rules against gay marriage on a similar case, SCOTUS may hear the case.
If one of those Circuits rules against a right to gay marriage (and I strongly suspect that the 5th will), SCOTUS will almost have to take the issue up. Then we'll see what Kennedy will do.
The way Justice Kennedy weighed in on the DOMA case shows he has no compunction to follow the law. In fact he follows his emotions and inner rage which makes him very dangerous.
Mona Charen nailed him on his mangling of that case.
I would tend to agree with your analysis on that. SCOTUS is likely letting this churn for a bit before making a decision. It is curious that the right wing of the court couldn’t get to four, when they clearly could with Alito, Roberts, Scalia and Thomas. So that would probably mean that they want to sidestep the issue for now.
If you’re on the left-flank of the court, you’re winning, so you really have no incentive to grant cert.
You’d figure the next battle wouldn’t necessarily be the imposition of gay marriage as a right. Incrementally, it should be something in the estate realm, like who takes intestate if some dies in a state where gay marriage is not recognized. (Like the case in Alabama right now). That could theoretically could force full faith and credit on the non-gay marriage jurisdictions by gay marriage jurisdictions. Since DOMA has been struck down, you think there’d be a full faith and credit argument.