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WASHINGTON — Justice Clarence Thomas suggested Thursday that the Supreme Court was divided over whether to hear the gay marriage cases the justices rejected last month.
Thomas offered a peek at what happened behind the scenes when the court turned away appeals from Indiana, Oklahoma, Utah, Virginia and Wisconsin on Oct. 6.
At the time, the justices said nothing to explain their action, and there was no way to know whether the court was unanimous.
But Thomas made reference to the same-sex marriage cases in a statement he attached to a high court order in an unrelated immigration case from Arizona.
He said he doesn't understand why the court did not hear appeals from the states that sought to preserve their bans on same-sex weddings.
The court often reviews decisions striking down state laws. "But for reasons that escape me, we have not done so with any consistency, especially in recent months," Thomas wrote, joined by Justice Antonin Scalia.
It's really hard to pin down the Supreme Court lately. It's hard to see which way they're going to go. I mean, it always has been, but it seems even they aren't staying consistent with things they've done before.
–Former 10th Circuit Court clerk, Michelle Mumford
It takes four justices to grant review of a lower court decision.
Justice Ruth Bader Ginsburg has said the court did not get involved then because lower appellate courts had all ruled the same way — in favor of same-sex couples.
But last week, the federal appeals court in Cincinnati upheld gay marriage bans in Kentucky, Michigan, Ohio and Tennessee and created a division that the Supreme Court is expected to resolve.
Included in the appeals turned away last month was Utah's case of Kitchen v. Herbert, in which a U.S. district court judge ruled and the 10th Circuit Court of Appeals upheld that the state's constitutional definition of marriage be overturned. Utah's Amendment 3 defined marriage as a union between one man and one woman.
Michelle Mumford, a former 10th Circuit Court clerk, said Thursday that Thomas' statements indicate there is a division among the justices.
"He's kind of hinting at the fact that, 'We would have liked to, but we didn't have the votes,'" Mumford said. "I think he's telling people where he was and where he might be in the future."
Recent decisions by the high court have been unpredictable, she said.
"It's really hard to pin down the Supreme Court lately," Mumford said. "It's hard to see which way they're going to go. I mean, it always has been, but it seems even they aren't staying consistent with things they've done before."
Contributing: McKenzie Romero
