The United States Supreme Court will preview seven appeals arising from same-sex marriage litigation when the justices assemble on September 29 for a private conference.
The justices have before them seven petitions on appeal—three from Virginia and one each from Oklahoma, Utah, Indiana and Wisconsin. The Indiana and Wisconsin cases involve rulings decided last week by the Seventh Circuit Court of Appeals.
There is no guarantee that the justices will accept any of the petitions for a full review, but with so many lower courts issuing opinions—sometimes carrying different shades of legal interpretation—it seems unlikely that the Supreme Court would bypass the issue.
The petitions in effect ask the court to specify standards for judging the constitutionality of laws in gay rights cases, not just marriage. Whatever the Supreme Court decides on any issue affects laws throughout the nation. If the court were to rule on a gay rights issue, it could establish, once and for all, that marriage applies to same-sex couples as well as heterosexuals.
On the other hand, an unfavorable ruling could deal gay rights a setback that would last for many decades, just as Plessy v. Ferguson in 1896 enshrined the concept of "separate but equal" for blacks until the court reversed itself in Brown v. Board of Education in 1954.
It's a huge roll of the dice.
The Supreme Court glanced at the question of same-sex marriage once before, in 1972. It tossed out the petitions summarily, without briefs or oral argument. The court said the idea of opening marriage to same-sex couples did not involve a "substantial federal question."
A lot has changed since then. Last year, the court overturned the federal Defense of Marriage Act, which created a flood of rulings, most of them based on that decision in United States v. Windsor.
Why this matters
Now a warning: We’re going to get into the weeds to explain why we got here and what might happen next.
After the Windsor ruling, judges in 18 courts have issued opinions in favor of the freedom to marry with only one stinker, in Louisiana, in opposition.
The Tenth Circuit Court of Appeals ruled favorably in cases from Oklahoma and Utah; the Fourth Circuit did likewise in Virginia. Each of these rulings found that denying marriage to same-sex couples abridged their constitutional right to equal protection and due process.
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Last week the Seventh Circuit bypassed the constitutional issues, instead declaring that a ban on same-sex marriage was simply an unreasonable act of discrimination. Those cases originated in Wisconsin and Indiana.
In late August, the Sixth Circuit heard oral argument in cases from Michigan, Ohio, Kentucky and Tennessee. Each of these cases involved the rights of same-sex couples who were legally wed in other states, only to have their marriages disregarded when they returned home. A ruling is expected shortly.
On Monday the Ninth Circuit heard oral argument in cases from Idaho and Nevada. The Ninth Circuit, the most liberal in the country, is likely to rule in favor of marriage equality, based on newspaper accounts of from the hearing.
Also, district courts in Texas, Colorado and Florida have ruled in favor of marriage equality and a state court in Arkansas did likewise. However, last week a judge in Louisiana turned thumbs down by issuing a blatantly anti-gay opinion.
In addition litigation is percolating through the courts in several states, including Alabama, Alaska, Georgia, Kansas, Missouri, North Carolina, South Carolina and West Virginia.
If Supreme Court accepts the marriage cases, backers of same-sex marriage will have a legal powerhouse as allies. Attorneys Ted Olson and David Boies, who persuaded the court to knock down California's same-sex marriage ban last year, will argue for a couple in one of the Virginia cases. They've argued many cases before the court before.
When happens next?
With all these rulings, and the differing shades of opinion, the Supreme Court is bound to announce that it will take up the question in the new term, which starts in October—just 19 days from now. However don't expect a final decision until June 2015. The court has a knack of deciding important controversies just before its term ends on June 30. Sometimes it takes that long for the justices to sort out the legal issues and write cogent opinions.
Court-watchers are wondering whether the final ruling will depend, as it usually does, on the pivotal justice, Anthony Kennedy. He wrote the majority opinions that overturned DOMA and struck down a Texas sodomy law that was applied only to gay men.
Usually the remaining justices form a four-four split. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan constitute the liberal bloc. Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito are the conservatives.
However, in the DOMA case, Roberts joined with Kennedy and the four liberals to create a 6-3 majority. Roberts is younger and more forward-looking than his conservative colleagues. He may have a finer sense of public opinion, which clearly is moving in favor of same-sex marriage. Of course the courts are supposed to devote themselves to legal issues, not public clamor. Then again, as the fictional Finley Peter Dunne said in 1901, "No matter whether th' constitution follows h' flag or not, th' Supreme Court follows th' election returns."
Unless the justices decide otherwise, there will be no way to know from the September 29 conference whether the court will accept any of the petitions that have been filed. The court does not discuss its inner workings.
Usually the procedure is for the court to announce which opinions it will hear as its term progresses. That could be right after October 1 or it could be a couple of months from now. It's worth noting that the court is under no obligation to hear appeals from lower courts. It selects about 75 appeals out of the 10,000 it receives each year.
But the marriage equality cases are special. They raise important constitutional questions, they raise important public policy questions, and the appellate courts (and the district courts) are not completely in synch in the legal reasoning. Moreover, the very conservative Fifth Circuit Court of Appeals, which is hearing the Texas case, could rule against same-sex marriage. That definitely would precipitate a Supreme Court review. The Supreme Court would not tolerate a wide disparity in citizenship rights from one area of the country to another.
Mind you, I'm not rooting for the Fifth Circuit to do the wrong thing. I'm such saying that it is possible.
Where marriage is legal
Today 19 states allow same-sex couples to marry. In most instances, those rights were extended by legislation or voter referendum. These states include:
Today there are no states in the South (or the Plains or Mountain states) where a same-sex couple can walk into a registrar's office and obtain a marriage license.
All of the court decisions now before the courts have been stayed pending the outcome of appeals. About 1,000 couples in Utah were married before the state's attorney general could file a petition to suspend the process. That stay remains in place while the appeal proceeds.
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| The Justices of the Supreme Court Top, from left: Sonia Sotomayor, Stephen Breyer, Samuel Alito and Elena Kagan. Bottom, from left: Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, Anthony Kennedy and Ruth Bader Ginsburg. |
Why this matters
Last week the Seventh Circuit bypassed the constitutional issues, instead declaring that a ban on same-sex marriage was simply an unreasonable act of discrimination. Those cases originated in Wisconsin and Indiana.On Monday the Ninth Circuit heard oral argument in cases from Idaho and Nevada. The Ninth Circuit, the most liberal in the country, is likely to rule in favor of marriage equality, based on newspaper accounts of from the hearing.
In addition litigation is percolating through the courts in several states, including Alabama, Alaska, Georgia, Kansas, Missouri, North Carolina, South Carolina and West Virginia.
When happens next?
Usually the procedure is for the court to announce which opinions it will hear as its term progresses. That could be right after October 1 or it could be a couple of months from now. It's worth noting that the court is under no obligation to hear appeals from lower courts. It selects about 75 appeals out of the 10,000 it receives each year.
But the marriage equality cases are special. They raise important constitutional questions, they raise important public policy questions, and the appellate courts (and the district courts) are not completely in synch in the legal reasoning. Moreover, the very conservative Fifth Circuit Court of Appeals, which is hearing the Texas case, could rule against same-sex marriage. That definitely would precipitate a Supreme Court review. The Supreme Court would not tolerate a wide disparity in citizenship rights from one area of the country to another.
Mind you, I'm not rooting for the Fifth Circuit to do the wrong thing. I'm such saying that it is possible.
Where marriage is legal
Today 19 states allow same-sex couples to marry. In most instances, those rights were extended by legislation or voter referendum. These states include:
- All six New England states (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont)
- Five Mid-Atlantic states (New York, New Jersey, Pennsylvania, Delaware, Maryland, plus the District of Columbia)
- Three Midwest states (Illinois, Iowa and Minnesota)
- One southwestern state (New Mexico)
- Four Pacific Coast states (California, Hawaii, Oregon and Washington)
Today there are no states in the South (or the Plains or Mountain states) where a same-sex couple can walk into a registrar's office and obtain a marriage license.
All of the court decisions now before the courts have been stayed pending the outcome of appeals. About 1,000 couples in Utah were married before the state's attorney general could file a petition to suspend the process. That stay remains in place while the appeal proceeds.