What Will The Supreme Court’s Marriage Choice Be?

Today the justices of the U.S. Supreme Court met in a private closed door session to consider which  which cases to take and decide from the thousands of petitions for certiorari that have been filed with the Court.  Among those petitions for certiorari are a number of gay marriage case on appeal from  various U. S. Courts of Appeal all of which to date have invalidated state bans on same sex marriage.  Numerous bloggers and pundits have been speculating and "reading the tea leaves" as to what cases, if any the justices will pick to decide. The justices have numerous options before them and at this point, no one can say with absolute assurance what will occur.  However, should the Court decline to take any of the marriage case appeals, it will have to by default affirm the decisions of the Courts of Appeal and, if that is the result, release the current stays of the lower court rulings.  Doing absolutely nothing is, in effect, not an option.  They either take the appeal or they by default affirm the lower court ruling.  This latter course would as a result make gay marriage legal in the states within the applicable Court of Appeals districts.  A piece in The New Yorker has as good of an examination of the situation as any.  Here are highlights:

Legal shifts, especially in constitutional rights, often develop in the Supreme Court at a glacial pace, the magnitude of change perceptible only in hindsight.  That is no longer true of marriage equality. On Monday, the Court considers whether to hear one or more cases during its upcoming term that would determine the issue in all fifty states. History is in motion.

The court’s first preliminary conference of the term is a closed-door session at which only the Justices are present, and during which they choose which cases to decide of the thousands of petitions for certiorari, or consideration, they receive each year. The Justices will field requests by parties in five gay-marriage cases from states in three of the nation’s thirteen circuits. In the order in which they were filed (and the timing may be significant), the cases are from Utah (Herbert v. Kitchen), Oklahoma (Smith v. Bishop), Virginia (Rainey v. Bostic;, Indiana (Bogan v. Baskin), and Wisconsin (Walker v. Wolf). If the Court decides on Monday to begin the process of hearing a case this term, we may know about it this week, and a decision would almost certainly come by early next summer, or sooner.

For now, there is intense focus on whether the court will take a case, and which one will it be.

The case from Utah was filed first, and that could give it precedence. The District Court ruling was also the first to rely heavily on Windsor. A number of prominent lawyers have recently joined the plaintiff’s legal team . . . . 

In the case from Virginia, the plaintiffs have a number of prominent lawyers on their side, too. They include, most consequentially, Ted Olson and David Boies, who led the case against Prop 8. Their fifty-state strategy in the Prop 8 case was much criticized by the gay-rights legal establishment at the time. That such a victory is now within reach may, without a grant of certiorari in their Virginia case, be cold comfort for the pair. Olson is also a former Republican solicitor general and has a number of friends among the Justices, who know his commitment to the issue. There is another point of resonance: the Supreme Court case that ended laws banning interracial marriage was Loving v. Virginia, and another case from the same state may be seen as an appropriate bookend. Other prominent gay-rights attorneys have also entered the Virginia case, including a number who have filed their own petitions. Among them are Paul M. Smith, who argued Lawrence v. Texas, which struck down anti-gay sodomy laws and laid the theoretical ground for Windsor, and lawyers from the American Civil Liberties Union and Lambda Legal.

Or they may wait for a ruling against same-sex marriage from an appellate court. Justice Ruth Bader Ginsburg, speaking recently at the University of Minnesota Law School, suggested that without a ruling against same-sex marriage there was “no need for us to rush to step in.” (But she added, “Sooner or later, yes, the question will come to the Court.”) Such a ruling may soon come from the Sixth Circuit, which has heard arguments in, but not yet decided, a group of same-sex marriage cases from Michigan, Ohio, Tennessee, and Kentucky.

The veteran Supreme Court observer Linda Greenhouse recently commented, “It would come as no great surprise if the Supreme Court takes a pass this term. All my court-watching experience tells me that. But still, it’s hard to resist the sense that there is a moment at hand.”

The hope this week is that the Supreme Court will be tempted not to wait.

For those of us in Virginia, if the court rejects the appeal of Rainey v. Bostic, and by default affirms the ruling of the 4th Circuit, then marriage in Virginia could become legal even sooner than next summer.  On the other hand, should the Court take up the appeal from the 4th Circuit, then hopefully by next summer the Marshall-Newman Amendment will be on the trash heap of history where it belongs.