Outside the Beltway

Supreme Court Agrees To Hear Same-Sex Marriage Cases

The two decade long argument over same-sex marriage appears headed for its final legal showdown.

Doug Mataconis · Friday, January 16, 2015 · 13 comments

Late today, the Supreme Court announced that it had accepted petitions for appeal in four cases arising out of the Sixth Circuit Court of Appeals that would decide the question of whether or not there is a Constitutional right to same-sex marriage, as well as whether or not states are required to recognize same-sex marriage pending in other states:

WASHINGTON — The Supreme Court on Friday agreed to decide whether all 50 states must allow gay and lesbian couples to marry. The court’s announcement made it likely that it would resolve one of the great civil rights questions of the age before its current term ends in June.

The justices ducked the issue in October, refusing to hear appeals from rulings allowing same-sex marriage in five states. That surprise action delivered a tacit victory for gay rights, immediately expanding the number of states with same-sex marriage to 24 from 19, along with the District of Columbia.

Largely as a consequence of the Supreme Court’s failure to act in October, the number of states allowing same-sex marriage has since grown to 36, and more than 70 percent of Americans live in places where gay couples can marry.

The pace of change on same-sex marriage, in both popular opinion and in the courts, has no parallel in the nation’s history.

Based on the court’s failure to act in October and its last three major gay rights rulings, most observers expect the court to establish a nationwide constitutional right to same-sex marriage. But the court also has a history of caution in this area.

It agreed once before to hear a constitutional challenge to a same-sex marriage ban, in 2012 in a case called Hollingsworth v. Perry that involved California’s Proposition 8. At the time, nine states and the District of Columbia allowed same-sex couples to marry.

When the court’s ruling arrived in June 2013, the justices ducked, with a majority saying that the case was not properly before them, and none of them expressing a view on the ultimate question of whether the Constitution requires states to allow same-sex marriage.

But a second decision the same day, in United States v. Windsor, provided the movement for same-sex marriage with what turned out to be a powerful tailwind. The decision struck down the part of the Defense of Marriage Act that barred federal benefits for same-sex couples married in states that allowed such unions.

The Windsor decision was based partly on federalism grounds, with Justice Anthony M. Kennedy’s majority opinion stressing that state decisions on how to treat marriages deserved respect. But lower courts focused on other parts of his opinion, ones that emphasized the dignity of gay relationships and the harm that families of gay couples suffered from bans on same-sex marriage.

In a remarkable and largely unbroken line of more than 40 decisions, state and federal courts relied on the Windsor decision to rule in favor of same-sex marriage.

The most important exception was a decision in November from a divided three-judge panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati. Writing for the majority, Judge Jeffrey S. Sutton said that voters and legislators, not judges, should decide the issue.

That decision created a split among the federal appeals courts, a criterion that the Supreme Court often looks to in deciding whether to hear a case. That criterion had been missing in October.

The Sixth Circuit’s decision upheld bans on same-sex marriage in Kentucky, Michigan, Ohio and Tennessee. The Supreme Court agreed to hear petitions seeking review from plaintiffs challenging the bans in each of those states.

As Lyle Denniston notes, the Justices limited their consideration of the cases to the two core issues of whether the 14th Amendment requires states to allow same-sex couples to marry, and whether it requires a state to recognize the same-sex marriages conducted in a sister state:

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.

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, that 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, thatve 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.

Presently, the final period of oral argument for the current term is set for April 20th throu0gh 29th, so these cases will presumably be set for argument at some point during that period, although the fact that Reply Briefs aren’t due to be filed until the 17th of April suggests that it is likely to be set at some point toward the end of that term or perhaps on a later date in early May should the Justices choose to do so. As for the decision itself, it was seemingly inevitable that the Court would accept one or more of these Sixth Circuit cases for review. It’s previous failure to act on the appeals from the Fourth, Seventh, and Tenth Circuits, as well as its decision not to impose stays in cases arising from states as diverse as Idaho and Florida, could be explained by the fact that there was no split among the Circuits on the issue of whether or not recognition of same-sex marriage was a Constitutional right. Once the Sixth Circuit handed down its decision, though, that was no longer true and the prospect that the Court would have treated the Sixth Circuit Court cases the same way it treated the others seemed remote at best.  As noted in the articles quoted above, the expectation among most Court observers is that the Court will ultimately, albeit by the same narrow 5-4 margin we saw in United States v. Windsor when the Justices struck down the Defense of Marriage Act, decide in favor of a right to same-sex marriage. As I’ve noted before, the manner in which the Justices treated the previous requests for appeal, and the extent to which it has allowed marriages between same-sex couples to go forward in what now amounts to some 36 states comprising more than 70% of the population of the United States suggests strongly that there exists a majority of Justices who are inclined to strike down bans against same-sex marriage nationwide. However, nothing is official until the Court actually issues its opinion, which is likely to be the last opinion issued this term in late June. Between now and then, there will be much analysis of the briefs filed, and the oral arguments that will be heard in April. In the end though, it seems likely that the Justices are likely to bring an end to the same-sex marriage debate in just about five months from now.

As always, stay tuned.