Justice Thomas hints at court split on gay marriage review

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By MARK SHERMAN
Associated Press

WASHINGTON (AP) — Justice Clarence Thomas suggested Thursday that the U.S. 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 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 anti-gay marriage laws in Kentucky, Michigan, Ohio and Tennessee and created a division that the Supreme Court is expected to resolve.