U.S. Supreme Court

The court released no vote count Monday and no justice publicly dissented.

By JOSH GERSTEIN | 10/6/14 8:06 PM EDT

The U.S. Supreme Court added fuel Monday to the same-sex marriage drive sweeping the country like wildfire, clearing the way for judicial rulings to add 11 more states to the 19 which already allow the practice.

By letting stand lower court decisions in five cases overturning state same-sex marriage bans, the justices unmistakably advanced what supporters call marriage equality. But the justices did so while allowing the high court to avoid — at least for now — a definitive ruling on a divisive social issue that opponents have long argued should be decided by elected representatives and the people themselves.

The justices may also be hoping to dodge the kind of questions about the court’s legitimacy that followed the 1973 Roe v. Wade decision legalizing abortion nationwide.

Even liberal justices like Ruth Bader Ginsburg and Elena Kagan have suggested that it would have been better not to force a one-size-fits-all solution on states and instead allow the political process to fashion abortion rights.

“They may be thinking that by doing this they don’t paint a target on the Supreme Court like they did with Roe v. Wade,” said conservative John Eastman of Chapman Law School.

The court released no vote count Monday and no justice publicly dissented. But some experts on both sides of the ideological divide immediately suspected that Chief Justice John Roberts had broken with conservative colleagues more eager to try to stop the flurry of rulings favoring same-sex marriage rights by accepting one of the petitions. Four votes are needed for the justices to take a case.

“I think it would be in character for Roberts to do this. Look at the ridiculous decision he handed down in Obamacare,” Eastman said, referring to the deciding vote Roberts cast finding the Affordable Care Act’s individual mandate constitutional.

“I find it hard to believe Thomas, Alito and Scalia wouldn’t vote to take it,” Eastman said of the same-sex marriage issue. “The only thing that makes sense is Roberts didn’t vote to grant certiorari and the other justices were happy to allow this thing to be decided by default.”

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