Signs are The Supremes Will Settled Gay marriage Issue this Term
When the Supreme Court meets Monday for the closed-door conference that will kick off its new term, it will consider whether to take up the issue of same-sex marriage, with seven different petitions concerning state same-sex marriage bans on its docket. The petitions come from four separate decisions out of three different U.S. Courts of Appeal on cases emanating from five different states.
A pair of Supreme Court rulings – United States v. Windsor and Hollingsworth v. Perry – issued just 15 months ago kicked into motion a wave of lower court decisions overturning same-sex marriage bands in a number of states. s. Now the high court is facing pressure from those on both sides of the issue, who would like to see the legal definition of marriage be settled once and for all, as well as from the political, legal and business communities, which are currently grappling with a patchwork of different laws.
The speed with which the same-sex marriage question returned to the Supreme Court has surprised advocates and opponents alike. In its 2013 Windsor decision, the court struck down the Defense of Marriage Act, on the grounds it was unconstitutional for the federal government not to recognize the same-sex marriages considered legal in some states. While the court was essentially kicking the marriage question back to the states, a number of the lower courts have used Justice Anthony Kennedy's majority opinion – and even Justice Antonin Scalia's dissent – to justify overturning state bans.
While the court could decide Monday it will take up one or more of the cases, it is by no means required to, despite the urgent language employed in the petitions. “I think it's possible there won't be four votes for cert [certiorari] until more appeals courts are heard from,” says Garrett Epps, constitutional law professor at the University of Baltimore School of Law, referring to the four out of nine justice votes required for the court to take up a case. He, like many, believes the Supreme Court will wait until an appeals court upholds a state ban, incurring what is known as a circuit split, which is typically, but not always, what prompts the Supreme Court to weigh in on an issue.
“Until then, the justices may want to let the issue percolate, since neither side will be sure of having five votes, and some members may prefer not to have the court determine the issue at all,” Epps says.
That split could come from the impending decision from the 6th Circuit, one of the two circuits that heard arguments for state marriage bans but have not yet issued rulings. Justice Ruth Bader Ginsburg herself nodded to the possibility of that development pressing the Supreme Court to act during a Sept. 16 appearance at the University of Minnesota Law School.
Bader Ginsburg has criticized the Roe v. Wade decision legalizing abortion for moving too quickly and sweepingly, prompting an anti-abortion backlash (Bader Ginsburg is pro-abortion rights) that continues today. Some read that as a sign she feels similarly about same-sex marriage, and would urge the court to wade delicately into a matter that remains polarizing for many.
While a decision is also expected from the 9th Circuit, which is ruling on bans in Idaho, Nevada and Hawaii (Hawaii has already overturned its ban on same-sex marriage with a state law), that decision – being made by three Democrat-appointed judges – is widely expected to follow the trend of the other appeals courts in favor of gay marriage. The two out of the three judges on the panel in the 6th Circuit case, which is deciding on bans in Michigan, Ohio, Kentucky and Tennessee, were appointed by Republicans.
Not everyone, however, is convinced the court will wait for a split from the lower, appellate courts.
“With so many cases in front of the court, with nearly 40 lower courts – state and federal -- [that have ruled in favor of same-sex marriage], it will be clear to the justices that there is no reason to delay, and there is every reason to finish the job,” says Evan Wolfson, founder and president of Freedom to Marry, which advocates for same-sex marriage.
Nevertheless, the Supreme Court could wait until as late as January 2015 to formally take up the issue and still deliver a ruling by the end of the term in late June or early July. It would also not be unprecedented for the court to hear the case this term and deliver its decision the next, as it did in Roe v. Wade, or just wait until the 2015-2016 decision to take it up.
The Supreme Court will not only be considering the matter of timing. What case or cases it ultimately hears will help determine the scope of its eventual ruling, both as it pertains to marriage itself – will its ruling apply to the ability of gay couples to get married in all states or just whether states have to recognize the same-sex marriages of other states – and the decision’s implications outside the issues of marriage.
The Supreme Court will not only be considering the matter of timing. What case or cases it ultimately hears will help determine the scope of its eventual ruling, both as it pertains to marriage itself – will its ruling apply to the ability of gay couples to get married in all states or just whether states have to recognize the same-sex marriages of other states – and the decision’s implications outside the issues of marriage.
“The court is going to have to decide how much it is going to put on its plate,” said Gregory Garre, a former U.S. solicitor general and now a constitutional law professor at George Washington University Law School, at a panel sponsored by the American Constitution Society for Law and Policy.
Bans in Utah and Oklahoma, both overturned in separate decisions by the 10th Circuit, were decided on the basis of due process, meaning that denying gay couples the ability to wed deprives them of their fundamental right to marry. The 7th Circuit decision finding Indiana’s and Wisconsin’s same-sex marriage bans unconstitutional did so on the grounds of the equal protection clause of the 14th Amendment, with the unanimous panel arguing that same-sex marriage bans discriminate against one’s sexual orientation. If the Supreme Court decides on a case that invokes the equal protection clause, how it interprets the 14th Amendment could affect judicial rulings on other questions of LGBT rights and discrimination.
Those on both sides of the argument say they can win on either grounds.
Speaking to the due process argument, John Eastman, a Chapman University constitutional law professor and chairman of the anti-same-sex marriage group National Organization for Marriage, points to past cases establishing marriage as a fundamental right that tied the institution to procreation. This connection, he says, means the right to marriage applies to only heterosexual couples.
Furthermore, he says, “If the purpose of marriage, as 35 states have recently readopted in their own state constitutions and reaffirmed, is tied to the unique procreative ability of men and women, we don’t think [a same-sex marriage ban] violates [the Constitution] on equal protection.”
However, state and federal courts in the wake of Windsor have ruled overwhelmingly in the favor of those advocating same-sex marriage, with only a state judge in Tennessee and a federal judge in Louisiana upholding the bans.
“Lower courts have varied in their analysis of the marriage cases,” says Suzanne Goldberg, director of Columbia Law School's Center for Gender and Sexuality Law. “There are very different theories, but nearly every single court has reached the same conclusion that these bans are unconstitutional.”
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