Why the Supreme Court, this time, may take up same-sex marriage case

Although the high court declined to take up the constitutionality of same-sex marriage laws earlier this year, now there is a disagreement among federal appeals courts on the issue. 

The Supreme Court has scheduled the four same-sex marriage cases from the Sixth Circuit, in which that circuit became the only appellate level court to date to uphold a ban on same-sex marriage, for its first conference of the year on Jan. 9:

WASHINGTON – The Supreme Court is set to consider on Jan. 9 whether it will hear appeals of same-sex couples’ marriage challenges in cases out of five states, one of the legal teams representing the couples told BuzzFeed News on Monday.

“The Tanco [Tennessee case] petition will be considered at the Court’s January 9 conference, along with … petitions filed by the plaintiffs in Michigan, Ohio, Kentucky, and Louisiana,” National Center for Lesbian Rights spokesperson Erik Olvera told BuzzFeed News on Monday afternoon.

The plaintiffs and marriage equality advocates alike hope the petitions will provide the Supreme Court with the chance to take a case to resolve the issue nationally with a ruling that would apply across the country.

Although the justices denied petitions filed earlier in the year from other states, all were in cases in which the lower court had struck down the bans – and before there was a “circuit split,” a disagreement among the federal appeals court on the issue. All five petitions before the court now come from decisions upholding the various states’ bans.

In November, the 6th Circuit Court of Appeals, in a 2-1 decision, reversed the four district courts to have heard the cases out of Kentucky, Michigan, Ohio, and Tennessee – sending the plaintiffs in the cases from all four states to the Supreme Court seeking an appeal.

NCLR is among the lawyers representing the same-sex couple plaintiffs challenging Tennessee’s ban on recognition on same-sex couples’ marriages, and Olvera said the news about the Jan. 9 conference came from the Supreme Court clerk’s office.

The justices need to decide in the next month whether they will hear a case addressing same-sex couples’ marriage rights this term – meaning the case would be heard this spring and a decision would be expected by late June.

If the justices don’t accept one of the cases for review by mid-January – even if they accept a case later this winter or spring – then it is expected the case would not be heard until the Supreme Court’s next term, which begins in October 2015. If they deny the petitions out of the 6th Circuit, on the other hand, the lower court ruling would stand and the bans would remain in effect.

Depending on what the court decides, it’s possible that we may know as early as the afternoon of Jan. 9 what the court has decided to do with these four cases since that is generally the time when the court’s press office releases the first of what are typically two order’s lists that are issued based on what happened at the conference, where the justices will be discussing a number of pending cases, petitions, and motions in addition to the same-sex marriage cases. The next day we might expect to hear something after the Jan. 9 Conference would be Monday, Jan. 12, when the court hands down the rest of its orders list resulting from action taken at the Friday conference. At that point, we may learn that the one or more of the cases have been accepted for appeal and scheduled for oral argument, that the court has declined the petition for appeal, in which case the decision in the Sixth Circuit would stand and same-sex marriage would remain banned in Michigan, Ohio, Kentucky, and Tennessee, but this would have no impact at all on the state of the law in those parts of the country where federal appeals courts have struck down state laws banning same-sex marriage, nor would it necessarily impact the law in those parts of the country where the law remains unresolved. The final possibility is that the court could decline to take any action on the petitions on Jan. 9. This has happened frequently in the past with the Roberts court, where the practice of “relisting,” in which the court considers whether to take an appeal at more than one conference, has become more common than it used to be in the past. In this case, the next conference would be on Jan. 16, and then there’s another one on Jan. 23. As noted above, though, if the court does delay a decision on whether to accept the appeal much past mid-January, the odds become quite high that it would not schedule the case for oral argument until some time early in the October 2015 Term.

The anticipation, of course, is that the court will end up accepting the appeals from the Sixth Circuit because of the circuit split that now exists. and its recent action in refusing to impose a stay on same-sex marriages in Florida seems to reinforce the supposition that they will eventually accept the Sixth Circuit cases. Justice Ruth Bader Ginsburg seemed to hint at this even before the court had handed down its initial decision in October to decline to review the cases from the three circuits that had struck down such laws. At that time, there was no circuit split on the issue of the constitutionality of laws against same-sex marriage. Now that there is, and assuming that Justice Ginsburg was foreshadowing the court’s view of the procedure, then the most likely outcome is that the Supreme Court will take these cases for appeal. The only question is whether they will act on the petitions quickly enough to schedule briefing and oral argument for this term, or punt the case to October.

Doug Mataconis appears on the Outside the Beltway blog at http://www.outsidethebeltway.com/.