Metro Weekly

Supreme Court to consider same-sex marriage cases Sept. 29

Photo: U.S. Supreme Court. Credit: Todd Franson/Metro Weekly.
Photo: U.S. Supreme Court. Credit: Todd Franson/Metro Weekly.

Later this month the U.S. Supreme Court will discuss whether to hear a number of cases challenging state bans on same-sex marriage, according to the updated docket.

At the Supreme Court justices’ private conference on Sept. 29 following their return from their summer recess, the justices will consider seven petitions for writ of certiorari asking the high court to hear cases challenging same-sex marriage bans in five states: Utah, Oklahoma, Virginia, Indiana and Wisconsin. U.S. district courts have struck down bans in each of those states — decisions that have been upheld by the 4th Circuit, 7th Circuit and 10th Circuit courts of appeal.

The attorneys general for Utah, Indiana and Wisconsin have all petitioned the court to hear challenges to their respective state’s same-sex marriage bans. Virginia Attorney General Mark Herring, a Democrat who opposes the state’s same-sex marriage ban, has also asked the Supreme Court to hear the Virginia case. In Virginia, two court clerks have filed separate petitions as well asking the court to hear the case. A court clerk in Oklahoma has petitioned the high court regarding that case.

In an unusual move, plaintiffs in each of those cases are also asking the Supreme Court to take up their respective cases, despite winning at the appellate court level.

The Supreme Court has no obligation to take any of the cases, nor are they restricted to a specific timeframe for announcing their decisions. When the justices considered a number of cases challenging the Defense of Marriage Act (DOMA) and California’s Proposition 8 in 2012, they did not announce the cases they would hear until December.

The Supreme Court is expected to release an order list on Oct. 6 announcing which, if any, of the marriage equality cases they will take. According to Freedom to Marry, subsequent conferences to consider remaining cases will be held on Oct. 10, Oct. 17, Oct. 31, Nov. 7, Nov. 14, Nov. 25, Dec. 5 and Dec. 12. 

Four of the nine Supreme Court justices must vote to hear a case in order for a writ of certiorari to be granted. The breakdown of those votes are not released by the court, nor the justices’ reasons for granting or denying a petition to hear a case.

It is likely further federal district courts will rule on state same-sex marriage bans in the meantime and federal appeals courts could as well. Earlier this week, the 9th Circuit Court of Appeals considered same-sex marriage bans in Idaho, Nevada as well as Hawaii, although the Hawaii ban is defunct since same-sex marriage was legalized by the state Legislature. That court seemed likely to strike down the bans.

With no federal appeals court having upheld a same-sex marriage ban, there exists no split among the circuit courts that some experts believe could encourage the justices to consider the issue and resolve once and for all. That could change when the 6th Circuit Court of Appeals weighs in. When considering same-sex marriages bans in Michigan, Ohio, Tennessee and Kentucky last month that court appeared most skeptical of striking down such bans.

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