U.S. Supreme Court to consider same-sex marriage appeals on Monday

The U.S. Supreme Court returns to work on Monday with its “long conference” of petitions pending before the court to review.

Matching the speed of the lower courts in handling the same-sex marriage cases, the Supreme Court is scheduled to take its first look at all of the pending appeals at its Conference on September 29. Lyle Denniston at SCOTUSblog reports, Same-sex marriage cases set for early look :

Seven petitions — three from Virginia, and one each from Indiana, Oklahoma, Utah, and Wisconsin — will be submitted to the Justices at that session.  There is, of course, no certainty that they will act on any or all of them at that point, but the option is there.  With all sides agreeing that the time to rule is now, it would be a surprise if the Court opted to bypass the issue altogether in its new Term.

In order of their filing at the Court, these are the cases:  Herbert v. Kitchen (Utah), Smith v. Bishop (Oklahoma), Rainey v. Bostic (Virginia), Schaefer v. Bostic (Virginia), McQuigg v. Bostic (Virginia), Bogan v. Baskin (Indiana), and Walker v. Wolf (Wisconsin).

Together, the petitions raise two constitutional questions:  do states have power to refuse to allow same-sex couples to marry, and do states have power to refuse to recognize same-sex marriages performed in other states?  In all of the federal appeals courts’ decisions being challenged in these cases, state marriage bans of one or both of those kinds were struck down under the federal Constitution, either under equal protection or due process guarantees, or both.

Some of the petitions also ask the Court — for the first time — to specify a standard for judging the constitutionality of laws that are challenged in gay rights cases.  The Court has had a significant number of rulings, largely in favor of gay rights in recent years, but it has never said just what constitutional test it is using.  In the rulings over the past fifteen months in lower federal courts, judges have applied several variations of constitutional tests, from relaxed to rigorous, but always with the same result — nullifying state bans.

Another issue that some petitions want the Court to resolve is whether, in fact, the Justices settled this issue years ago, against same-sex marriages.  That was a 1972 summary decision — that is, without briefs and oral argument — in the Minnesota case of Baker v. Nelson.   There, the Court dismissed a plea to open marriage to same-sex couples, which it said did not involve a “substantial federal question.”

The Supreme Court has never questioned that decision, but lower courts recently have routinely ruled that more recent Supreme Court rulings on gay rights have made that decision basically a dead letter.

The most important Supreme Court precedent on which lower courts have been relying in the recent rulings is United States v. Windsor, the decision in June of last year striking down the 1996 congressional ban on federal marital benefits for same-sex couples already legally married under state law.  That decision on the Defense of Marriage Act did not settle the constitutionality of state action against same-sex marriage, but lower courts have read its rationale more widely in finding such bans to be invalid.

It has taken only a little over a year for the same-sex marriage issue to return to the Court, with the focus solely on state bans, and lawyers on both sides of the controversy have been moving very rapidly to get the issue prepared for the Supreme Court after lower courts had expedited their review.  In none of the seven petitions that the Court will be examining is anyone involved resisting Supreme Court review.

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Although no one at the Court said this explicitly, the Justices apparently wanted all seven of the petitions so far filed to be ready for the September 29 Conference, which is to be held a week before the new Term formally opens.  The seven petitions present a variety of scenarios with regard to who is appealing and what they are asking.  There is no way for outsiders to know exactly what the Justices will be looking for as they go over the seven filings.

Those petitions almost certainly will not be the last that the Supreme Court sees in the coming Term.  Two other federal appeals courts are poised to rule quite soon, and a third has a case before it but has not yet scheduled a hearing.

The Court, however, need not await the arrival of any other petitions, if it is prepared to take on the controversy itself promptly.

At present, there is no conflict among the Circuit Courts of Appeal that have ruled on state same-sex marriage bans. A conflict among the circuits is the typical reason the Court will agree to hear an appeal. The Court can continue these cases on its conference calendar, something it does frequently, waiting for a contrary ruling to be handed down from another Court of Appeals. There is no guarantee that the Court will grant a hearing and set it for oral argument on its calendar after its long conference on Monday.

There was recently some speculation that the Court is in no rush to hear these appeals after comments made by “Notorious RBG,” Justice Ruth Bader Ginsburg. Lyle Denniston noted in Mixed signals on same-sex marriage (UPDATED):

If Justice Ruth Bader Ginsburg was speaking for the Supreme Court on Tuesday night in Minnesota about how the Justices will deal with the same-sex marriage issue this Term, the question just may go untouched for a time.  She seemed to be saying that, until there is a fresh split among federal appeals courts on the issue, there would be no need for the Court to move with dispatch to confront the constitutional controversy.

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Justice Ginsburg appeared at the University of Minnesota Law School, for a videotaped conversation with a professor, Robert Stein . . . “The discussion of same-sex marriage begins with a question from Professor Bob Stein . . . . After briefly recounting how the Court left the issue open in 2013 by dismissing the Proposition 8 case, Justice Ginsburg says the following . . . :

So far the federal courts of appeals have answered the question the same way–holding unconstitutional the bans on same-sex marriage. There is a case now pending before the Court of Appeals for the Sixth Circuit. Now if that court should disagree with the others then there will be some urgency in the Court taking the case. But when all the courts of appeals are in agreement there is no need for us to rush to step in. So it remains to be seen what the Sixth Circuit will rule, when it will rule. Sooner or later, yes, the question will come to the Court.”

No one outside the Court can know whether the Justices have already begun discussing among themselves how they will react to the same-sex marriage cases already awaiting their initial examination. Justice Ginsburg’s comments could represent only her own views at this point, or they might reflect perceptions that some of her colleagues may share.

Taken on their own, her remarks could suggest the following: first, that she — and perhaps other Justices — are not particularly eager to get involved yet; second, that she and maybe others may not be prepared to vote for review unless there is a division among federal appeals courts; third, that such a division would have to be fresh, because the wave of recent federal appeals courts’ decisions striking down marriage bans does, in fact, conflict with a 2006 decision by the U.S. Court of Appeals for the Eighth Circuit upholding such a ban, which supporters of such bans have been citing to the Court in the new cases; and, fourth, that the Court is well aware of comments by observers who attended a recent hearing before the U.S. Court of Appeals for the Sixth Circuit that the panel had given indications that the outcome could be to uphold one or more bans in the four states involved in that hearing.

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There does not seem any realistic possibility that, absent a new conflict among the appeals courts, the Court will vote to deny review in any or all of the pending cases. If the Court were to do that, it would open the way for same-sex marriages to begin taking place immediately in those five states, but quickly spreading to other states that are located in the same geographic areas governed by the three appeals courts that so far have struck down bans on such marriages.

Until the first orders are issued out of the Justices’ September 29 Conference, it will not be known whether the Court will take any action on these cases. You will have to wait until “the first Monday in October” for orders to be announced.