Yesterday, the Supreme Court decided not to decide any of the pending cases involving the constitutionality of laws denying same-sex couples the freedom to marry. In all of these cases, federal courts of appeals had held the challenged state laws unconstitutional. What does it mean that the Supreme Court declined to review those decisions?

At the outset, it is important to understand that the Supreme Court has discretionary jurisdiction. That is, it selects the cases it will decide. On average, it agrees to decide only about 1 percent of the cases that are presented to it for review. For the Court to agree to hear a case, four of the nine justices must vote to put the case on the Court's docket. If the Court does not agree to hear a case, then the judgment of the lower court stands. In general, the justices vote to consider a case if one of two conditions is met: (1) if the lower courts are divided on the issue, or (2) if the issue is of such importance that it merits the Supreme Court's attention even if there is no division in the lower courts.

Because all of the federal courts of appeals that have considered this issue have agreed that state laws prohibiting same-sex marriage are unconstitutional, the key question is whether the issue is sufficiently important to warrant the Court's attention. No one doubts that the same-sex marriage issue is of that level of importance. Nonetheless, the justices exercised their discretion not to decide the question. Why?

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