U.S. Supreme Court – Credit: Ian Koski/flickr
Early next month, the issue of same-sex marriage will once again find itself before the U.S. Supreme Court. Upon return from their winter recess, the nine justices will meet behind closed doors on Jan. 9 to consider a number of cases petitioned to be heard by the high court. Among those cases distributed for consideration by the justices are challenges to same-sex marriage bans in five states: Louisiana, Kentucky, Michigan, Ohio and Tennessee.
The cases mark the first pertaining to same-sex marriage to come before the justices since they doubled the number of marriage-equality states in October by declining to hear several same-sex marriage cases petitioned to the court.
Last month, plaintiffs in the Louisiana case asked the Supreme Court to hear the case before a federal appeals court has rendered judgement. In September, U.S. District Court Judge Martin Feldman found constitutional a Louisiana law prohibiting same-sex marriage and recognition of same-sex marriages performed in other jurisdictions, marking the first federal court decision to uphold a state ban on same-sex marriage since the Supreme Court struck down Section 3 of the federal Defense of Marriage Act in June 2013. The state of Louisiana agreed with the plaintiffs that the Supreme Court should address whether the Fourteenth Amendment to the U.S. Constitution requires states to license or recognize same-sex marriages.
In a 2-1 decision handed down Nov. 6, the 6th Circuit Court of Appeals upheld same-sex marriages bans in four states — Kentucky, Michigan, Ohio and Tennessee — breaking with other federal appeals courts that have considered the issue. The Supreme Court has been asked to consider all four state marriage bans by plaintiffs in the four cases. With the exception of Tennessee, all of the states defending those respective bans have agreed the court should hear the cases.
The Supreme Court has no obligation to take up any of the cases, nor are they restricted to a specific time frame for announcing their decisions. 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. But it appears increasingly likely that the justices will feel compelled to act.
Indeed, this isn’t the first time the justices have been presented with the opportunity to consider state bans on same-sex marriage. In October, the court surprised marriage-equality advocates and opponents alike when they declined to hear cases challenging same-sex marriage bans in five states — Utah, Oklahoma, Virginia, Indiana and Wisconsin — thus allowing lower court decisions legalizing marriage equality in those states to stand. Because the Supreme Court left intact rulings by the 4th Circuit, 7th Circuit and 10th Circuit Courts of Appeals striking down same-sex marriage bans in those five states, the appeals courts’ decisions applied to six other states in those three circuits: West Virginia, North Carolina, South Carolina, Kansas, Colorado and Wyoming. As a result of that action, the Supreme Court doubled the number of marriage-equality states. More than half of the U.S. population now lives in one of the 35 states, plus D.C., that recognize same-sex couples’ right to marry.
“We all knew intellectually that was an option but we really all thought they were going to take it,” says Evan Wolfson, founder and president of Freedom to Marry, of the Supreme Court’s October surprise. “I will say it brought tremendous gains and certainly worked out so far, but while we celebrate getting to 35 states, it still means people in 15 states are being left behind and they are still experiencing real injury, real indignity and real injustice.”
But the legal landscape has changed since the Supreme Court last decided not to weigh in on the issue of a constitutional right to marry. The 6th Circuit’s decision last month to uphold same-sex marriage bans in four states has created a split among the circuits that did not exist in October. During a speech at the University of Minnesota Law School in September before the 6th Circuit’s decision, Justice Ruth Bader Ginsburg said that if the 6th Circuit struck down the marriage bans there would be “no need for us to rush.” However, if the court broke with other circuit courts in upholding the marriage bans, “there will be some urgency” for the Supreme Court to step in.
“In retrospect, I think we all have to acknowledge that it was a really powerful thing that the Supreme Court did [in declining to hear same-sex marriage cases],” says Roberta Kaplan, the attorney who represented Edith Windsor in her challenge to DOMA. “By making marriage reality in so many more states the sense of inevitability only became that much greater. You see that in connection with the denial of the stay effort in Florida.”
In an order handed down late Friday, the Supreme Court denied a stay request by attorneys for the state of Florida seeking to halt the implementation date of a lower court ruling striking down the state’s same-sex marriage ban during the appeals process. The hold on same-sex marriages in Florida is set to expire at the end of the day on Jan. 5, meaning same-sex marriages will likely begin the following day.
Florida Attorney General Pam Bondi had asked Supreme Court Justice Clarence Thomas, who oversees the 11th Circuit, to extend the stay. Thomas referred the issue to the full court, which denied the stay. The denial noted that Thomas and Justice Antonin Scalia would have granted the stay. Thomas and Scalia have dissented in a number of stay requests that have been denied by their colleagues. Unlike those cases, which have pertained to states in the circuits impacted by the Supreme Court’s decision not to hear the handful of marriage-equality cases in October, Florida is in the 11th Circuit, which has not yet addressed the issue of same-sex marriage. While a year ago the high court was quick to stay marriages in Utah as the case was appealed, the justices appear increasingly comfortable with allowing same-sex marriages to proceed before they themselves have considered the issue.
In November, Thomas provided a rare glimpse of the apparent divide among the justices over taking up the same-sex marriage cases that were denied by the court. In an order denying a stay in an unrelated immigration case in Arizona, Thomas issued a statement attached to the order that was joined by Scalia noting that they only agreed to deny a stay in the Arizona case because it appeared unlikely the necessary four justices would join in agreeing to hear arguments in the case. “That is unfortunate,” Thomas wrote.
“Indeed, we often review decisions striking down state laws, even in the absence of a disagreement among lower courts,” he continued, noting the decision by the court to hear arguments in the challenge to California’s Proposition 8 in 2012. “But for reasons that escape me, we have not done so with any consistency, especially in recent months.” Thomas pointed to the decision not to hear cases concerning same-sex marriage bans in Utah, Oklahoma, Virginia and Wisconsin as well as the decision by the court to deny stays in same-sex marriage cases in Idaho and Alaska. One day prior, a Supreme Court order declining to put same-sex marriage on hold in Kansas noted that Thomas and Scalia, who are considered part of the court’s conservative wing, would have granted a stay.
Thomas wrote that the court could still act on a petition for a writ of certiorari in the Arizona immigration case, but pointed back to the actions of the court this term. “I hope my prediction about whether that petition will be granted proves wrong,” he wrote. “Our recent practice, however, gives me little reason to be optimistic.”
According to Kaplan, there’s little question as to whether the Supreme Court will take up the issue of same-sex marriage. ”They clearly will and could do so as early as January 9,” says Kaplan, who successfully challenged Mississippi’s same-sex marriage ban in district court and is preparing for arguments before the 5th Circuit Court of Appeals. “It will certainly be in calendar year 2015, as to when in calendar year 2015, I think that is something that is solely in the discretion of the Supreme Court.”
Although it seems likely that will be the case, advocates are also combating a sense of inevitability, which Wolfson describes as the movement’s biggest obstacle. “That’s why we’re working so hard to communicate the urgency that this is about real people and it makes a big difference whether we win in ten years instead of one,” he says, adding that the hope is for the Supreme Court to bring the country to national resolution by the end of June.
“It really doesn’t matter which case, it really doesn’t matter which state, it really doesn’t matter which lawyer, because there will be a collective presentation. Let’s not forget, the court has heard these arguments before and more than 60 courts — state and federal, including so far five appellate courts — have written rulings based on our arguments and evidence,” Wolfson says. “Everything that’s going to be said has been said, the court has heard it, they will hear it again, they will hear it well and virtually every court that has heard it in the last two years has found the answer to be crystal clear: It’s time for the freedom to marry.”