Prof. Vladeck offers a history of the activities leading to Obergefell. In particular, the fact that SCOTUS--months prior to Obergefell--denied cert in a bunch of cases in which lower courts had declared state bans invalid; in doing so, it ensured marriage equality in those states and in other states within each circuit, without addressing or resolving the constitutional issue.
It illustrates a couple of things we have been discussing:
1) The immediate reviewability of decisions regarding injunctions under § 1292(a)(1). In each of these cases, plaintiffs (couples denied marriage licenses or some other state recognition of their marriage) sued and asked for a preliminary injunction prohibiting enforcement of the ban and ordering that they be given licenses. That preliminary injunction decision was immediately reviewable.
2) Because the PI decisions were not stayed, however, plaintiffs received licenses. By the time SCOTUS heard Obergefell, it was in a bind. Thousands of same-sex couples received licenses as a result of lower-court orders. If Obergefell came out the other way and states could again enforce these bans, no one knows what would have happened with those licenses.
3) Cert denials (and discretionary jurisdiction generally) give a lot of power to courts of appeals. Despite the loose talk about SCOTUS being the final arbiter of the Constitution or federal law, most cases never reach SCOTUS and most issues end (at least for awhile) in the courts of appeals.
4) Vladeck does not say this, but: Had the Sixth Circuit not made its move, it is possible marriage equality would have come to pass without SCOTUS intervention.
5) I encourage you to subscribe to Prof. Vladeck's Substack. It is free and offers great and digestible summaries of much of what we are doing here.
