Outside the Beltway

SCOTUS Will Find It Hard To Avoid Ruling On Marriage Equality In The Next Term

The Supreme Court's next term doesn't start for three months, but it's becoming clear that the Justices will have to deal with marriage equality when it does.

Doug Mataconis · Thursday, July 3, 2014 · 8 comments

Politico hits on an issue that I’ve touched on myself several times in the past few months, namely the fact that it is by now a virtual certainly that the Supreme Court will be considering appeals in one or more cases dealing with state laws banning same-sex marriage in the term that begins in October:

Break out the rainbow flags and wedding bands, say gay marriage advocates: As this year’s term ends, they now predict that they’ll be celebrating a Supreme Court decision at the end of the next one — or at latest, 2016’s — fully legalizing same-sex marriage nationwide.

Their optimism marks a sharp turn from two years ago, when many LGBT advocates were wary of rushing to the Supreme Court with a gay marriage legalization case, worried that they’d get there too quickly, get ruled against, and set the movement back years.

Today, just a year after the Windsor decision striking down the core of the Defense of Marriage Act and the Perry decision that kept California’s Proposition 8 off the books, all major LGBT advocates support going to the Supreme Court. They plan to use the same kind of coordinated legal and public relations strategy that’s led them to 16 out of 16 victories in lower courts, including Tuesday’s in Kentucky, where a district judge appointed by President George H.W. Bush struck down the state’s gay marriage ban.

Those decisions, along with movement in states that have legalized marriage legislatively, have created momentum. But they’ve also created an unusually pockmarked legal landscape that has different marriage laws state to state, even in the same region.

It’s the sort of situation, many believe, that just might motivate the Supreme Court to step in and establish one set law.

That, and not his own view on gay marriage, is what’s driving Utah Attorney General Sean Reyes to petition the court, explaining in a statement that he’s seeking “certainty and finality for all Utahns on such an important issue with a decision from the highest court.”

Noting that even among the attorneys in his office there are differing personal views on gay marriage, he added, “The state looks forward to the day when these issues are resolved and Utah, along with its citizens, have certainty and a clear understanding of the law.”

Meanwhile, advocates are counting on that certainty to take the form of a legalization ruling from the same five justices who struck down DOMA — and maybe even a legacy-minded Chief Justice John Roberts joining, too.

They say they might get there via the Utah attorney general’s petition. Or via circuit court decisions in Oklahoma and Nevada. Or by way of the case that went through a full trial in Michigan, or others in Texas, Ohio, Wisconsin, Tennessee or beyond.

Marriage legalization advocates also feel that the lack of chaos or disruption in the 19 states (plus Washington, D.C.) that have legalized gay marriage — in a statistic advocates like to cite, that accounts for 44 percent of the total American population — will ease the minds of justices who might worry that the country’s not ready for gay marriage, as even Justice Ruth Bader Ginsburg has hinted at in the past. The polls that show popular opinion sprinting to legalization should help, too, they say.

“A movement like ours doesn’t have to win in the four corners of the country. We had never been intending to plod state-by-state until we get through Mississippi in 2030 or something,” said Evan Wolfson, the founder and president of Freedom to Marry, which has been bringing cases for years. “But though you don’t have to win every state, you have to win enough states.”

“We’re just about as ready as we’re going to be,” said James Esseks, director of the ACLU Lesbian Gay Bisexual Transgender & AIDS Project, who was among those urging advocates to put the brakes on efforts to go to the court for the Perry decision.

Since Windsor and Perry, over 80 cases have been filed in federal and state courts, now in every single state that doesn’t have legal gay marriage already.

“The court decisions were the equivalent of, ‘Come on in, the water’s warm.’ You have seen the arguments replicated in all these cases,” said Fred Sainz, vice president for communications at the Human Rights Campaign — a group that had, under previous leadership, been among the leading groups wary of now-executive director Chad Griffin’s push to get Perry in front of the Supreme Court.

Ever since the Windsor decision came down just over a year ago, there has been an unbroken string of decisions at the state and Federal Court level striking down state laws banning same sex marriage, nearly two dozen of them at this point. As important as the number of cases and the fact that they’ve all pointed in one direction, though, is the fact that so many of them have already advanced far enough in the legal system that Supreme Court review is the next logical step. We’ve already gotten one decision from the 10th Circuit Court of Appeals and there is one other case pending in that Court, along with expected Court decisions from the Fourth and Fifth Circuits that could come down any day now. On August 6th, the Sixth Circuit Court of Appeals will hear consolidated oral argument in cases challenging the laws banning same-sex marriage in Michigan, Ohio, and Tennessee, as well as an appeal in a Kentucky case where a Judge had ruled the state must recognize a valid out-of-state same-sex marriage. The decision in that case would likely come down within more than enough time for the losing parties to make an appeal to the Supreme Court for a Writ Of Certiorari that, if granted, would lead to oral argument at some point within the Court’s new term.

Several commentators, such as Slate’s Emily Bazelon, have pointed out that the Court could avoid ruling on these cases by declining to hear the appeals, and have pointed out that, at least the moment, there is no Circuit split on the issue of same-sex marriage in the post-Windsor world. While that is certainly true as we sit here today, it may not necessarily remain the case. As I and other legal commentators have noted, there is always the possibility of an adverse ruling on marriage equality from one of the courts that are considering the matter. Such a ruling would be unusual given how things have proceeded in the past year, but one would think that it would happen at least once before we get a final ruling on this issue from the Justices. Some have suspected that the Fifth Circuit may be the most likely Court to uphold a same-sex marriage ban, and if that happens, we’ll get our Circuit split. Moreover, as Rick Hasan notes, there technically already is a Circuit split on the issue of whether or not there is a right to same-sex marriage:

Emily says there’s no split over same sex marriage since Windsor, and she’s right on that (all we have is the dissenting judge in the Utah appeal so far). But a reader points me to a pre-WindsorEighth Circuit case, Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006).

This indeed is a circuit split. Further the Eighth Circuit and the Tenth Circuit disagree on the continued vitality of the Supreme Court’s summary decision in Baker v. Nelson, rejecting a constitutional right to same sex marriage.

Granted, Bruning was decided seven years ago before Windsor, and the Eighth Circuit might rule differently in the case now in light of that decision and the cases that have followed it, but the case is still good law in the Eighth Circuit, and it’s directly opposed to the ruling from the Tenth Circuit. If the Justices are looking for a Circuit split and one doesn’t develop in the coming months, there it is right there.

Even without a Circuit split, though, I suspect that the Court will end up taking one or more of these cases when they get before it later this year. For one thing, this is a matter of sufficient national importance and interest that the court simply cannot avoid ruling on it at some point. If they don’t take an appeal in the October 2014 Term, then they will be forced to consider yet more appeals on the matter in the October 2015 Term. While the Windsor decision did signal, to some extent, the Court’s desire to let the issue play itself out in the lower courts and the states legislatures, there comes a time there will need to be a national rule on the question of whether or not their is a right to same-sex marriage. Moreover, as Hasan notes in another post, both sides of the Court’s ideological divide on this issue are likely to see this as an opportune time to address the issue:

I think Justice Kennedy is likely now a firm vote for a constitutional right to same sex marriage. This seems to be his legacy.

If that’s right, that means that even without a circuit split, the four liberals on the Court could well vote to take case case while Kennedy is still on the Court. And the conservatives too seem like they would not be able to resist making their “last stand” on the issue—after all, time does not appear to be on their side.

We’ll likely get a new round of Federal District and Court of Appeals cases coming down this summer, all of which will get added to that queue the Supreme Court will need to deal with. However, we won’t hear anything from the Justices until just before Court returns to the bench on the First Monday in October when it starts to consider requests for appeal that have will have built up during their vacation. The same-sex marriage cases probably won’t be among that first batch of cases they consider, but they likely be cases the Court will have to consider for appeal in the first few months in the term. Given that, I would expect the Court to have oral argument in one or more of these cases scheduled by the end of the year, and a decision to come down by the end of the term in June 2015. If things go the way I expect they will, the legal argument over marriage equality could be over in less than a year.