US Supreme Court poised to take up same-sex marriage

Both sides in the same-sex marriage debate want the US Supreme Court to act definitively. Differences in federal appeals court rulings could prompt the high court's consideration of gay marriage, now legal in 36 states and the District of Columbia.

Sooner or later, it seems, the US Supreme Court will rule definitively on same-sex marriage – a moment that couldn’t come too soon for advocates and opponents of gay marriage.

But it didn’t happen Friday – the first day of 2015 when the high court could have announced its intention to take up an issue that has rattled US society and politics.

Still, the court could have something to say on same-sex marriage Monday morning when it issues new orders, or perhaps the following Friday following a conference of the Supreme Court justices when they would have another opportunity to discuss several cases involving state bans on gay marriage.

Increasing the likelihood of court action is a recent split on the issue between federal appeals courts.

Longtime court-watcher Lyle Denniston sets the scene at scotusblog.com:

“The Court last considered a group of appeals filed by same-sex couples at the start of the current Term [2014-2015], and chose on October 6 to bypass all five cases. At that time, there was no current split among federal appeals courts on the constitutionality of state bans on same-sex marriage or on official recognition of already existing same-sex marriages performed elsewhere. Since then, however, a split has developed with the November decision by the U.S. Court of Appeals for the Sixth Circuit, upholding bans in the four states in its geographic region.

“Appeals from the Sixth Circuit ruling are now pending at the Court, along with an appeal from a federal trial judge’s ruling upholding a ban in Louisiana. Those are the five cases the Justices were scheduled to examine at the first Conference after returning from a winter recess.”

The five cases noted here are in Tennessee, Louisiana, Kentucky, Michigan, and Ohio.

To supporters of same-sex marriage, momentum in their direction seems unstoppable.

Gay and lesbian couples are now able to legally marry in 36 states and the District of Columbia. That means some 70 percent of Americans live in places where same-sex marriages may be licensed and performed.

“The overwhelming tidal wave of court rulings over the last year has put America on the cusp of nationwide marriage equality,” Human Rights Campaign legal director Sarah Warbelow said in a statement this week, noting that since this time last year, state statutes or constitutional amendments banning marriage rights for same-sex couples have been overturned by state or federal courts in 28 states.

That recently included Florida when the US Supreme Court declined to extend the stay on a federal court ruling striking down that state’s ban on marriage for same-sex couples.

On Friday, a motion to dismiss a class action lawsuit on same sex marriage in Georgia was denied, which means the case can move forward. Also on Friday, the US Court of Appeals for the Ninth Circuit denied Idaho Gov. Butch Otter’s request for a full court review of its October 7 3-0 decision striking down Idaho’s ban on same-sex marriage. 

“The Ninth Circuit correctly recognized that there is no need to reconsider the panel’s decision that Idaho’s marriage ban violates basic constitutional guarantees of equal protection,” Shannon Minter, legal director of the National Center for Lesbian Rights, said in a statement. “The Ninth Circuit’s decision striking down the Idaho marriage ban is consistent with the rulings of three other federal appeals courts…”

To many active supporters of traditional marriages – one man and one woman – all of this paints a picture of activist judges determining a profoundly moral and in some cases religious issue that is the bedrock of families and society.

They note that in cases where individuals have the opportunity to decide the issue at the state level, the outcome most often favors traditional marriage.

"Federal judges are acting as if the US Supreme Court has ordered same-sex marriage to be imposed, but in reality the Court has ruled that states have the right to define marriage,” Brian Brown, president of the National Organization for Marriage, said this week. “We demand that the US Supreme Court act immediately to review the pending marriage case before them and swiftly reaffirm that states have the right to define marriage as the union of one man and one woman."

Meanwhile, polls show a steady shift in public opinion regarding gay marriage. The Human Rights Campaign analyzes the data this way:

“Gallup puts support for marriage equality at 55 percent – an astonishing 15 points increase from just 5 years ago – with other polls showing support at even higher margins. And support for same-sex marriage rights continues to grow in virtually every demographic group. According to ABC News/Washington Post, 77 percent of adults under age 30 favor marriage equality.  Forty percent of Republicans – an all-time high and jump of 16 points in under two years – now support marriage for gay and lesbian couples, while the number of Catholics supporting marriage has grown to 62 percent, according to the New York Times.  These numbers continue to grow, with no indication that support will slow down.”