SCOTUS to decide constitutionality of same-sex marriage

The day has finally arrived that the U.S. Supreme Court has granted all four same-sex marriage petitions from the Sixth Circuit Court of Appeals. The order list is here (.pdf). Clear your calendar for the last week of June when this historic decision will be announced.

Lyle Denniston at SCOTUSblog reports, Court will rule on same-sex marriage:

Taking on a historic constitutional challenge with wide cultural impact, the Supreme Court on Friday afternoon agreed to hear four new cases on same-sex marriage.   The Court said it would rule on the power of the states to ban same-sex marriages and to refuse to recognize such marriages performed in another state.  A total of two-and-a-half hours was allocated for the hearings, likely in the April sitting.  A final ruling is expected by early next summer, probably in late June.

The Court fashioned the specific questions it is prepared to answer, but they closely tracked the two core constitutional issues that have led to a lengthy string of lower-court rulings striking down state bans.  As of now, same-sex marriages are allowed in thirty-six states, with bans remaining in the other fourteen but under court challenge.

Although the Court said explicitly that it was limiting review to the two basic issues, along the way the Justices may have to consider what constitutional tests they are going to apply to state bans, and what weight to give to policies that states will claim to justify one or the other of the bans.

In a part of the order that was not entirely clear, the Court instructed lawyers to limit their written and oral arguments to the specific issues they had raised in taking the cases to the Court.  However, that apparently meant that couples seeking to marry can only raise that issue, and couples seeking official recognition of their existing marriages can only argue that question.

The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? A total of ninety minutes is allotted for oral argument on Question 1. A total of one hour is allotted for oral argument on Question 2. The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions.

One issue that this instruction did remove from the cases was a plea, raised by Tennessee couples, that a ban on same-sex marriage interferes with their constitutional right to travel.  That was not one of the two questions the Court set for review.

From the point of view of the four states involved in the cases, their lawyers apparently will not be prevented from making arguments on two points to try to help them salvage their bans: first, the Supreme Court settled that issue in a summary ruling in 1972 in the case of Baker v. Nelson, so that is the answer to both questions; and, second, federal courts have no jurisdiction to rule on matters of domestic relations, including marriage, so the regulation of marriage has to be left to the states to decide.

The Court told the lawyers for same-sex couples to file their written briefs on the merits by February 27, and the lawyers for the states to file by March 27.  Reply briefs by the couples’ lawyers are due on April 17.

The Court is scheduled to hold its final session of oral arguments from April 20 through 29, so the same-sex marriages will be scheduled during that time. The order issued on Friday did not set that date; that will be done later.

Justice Anthony Kennedy, who wrote the decision in United States v. Windsor which forced the federal government to recognize gay marriages, is likely to be the author of the decision in these cases. I hope that he trolls Justice Antonin Scalia for his dissent in Windsor, as almost every federal court judge has done in striking down state same-sex marriage bans, for providing plaintiffs the road map in these cases.  Justice Antonin Scalia unintentionally is responsible for same-sex marriage in America.

UPDATE: The Obama administration will file a brief in the same-sex marriage cases, supporting equal access to marital rights in all of the states, Attorney General Eric Holder said in a statement.