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| The Bostic plaintiffs |
There continues to be much breathless watching among LGBT rights groups - and among anti-gay hate groups - to see whether the United States Supreme Court will take one or more of the same sex marriage case appeals from the U.S. Circuit Courts of Appeal that have struck down state gay marriage bans. With the Court still shifting through the piles of appeals that have been filed, it may be days or weeks before we know with certainty what the Court will do. But, as a noted in a previous blog, the Court will have to do something: either take one or more of the cases or reject the appeal which will by default affirm the Court of Appeals rulings. A piece in th Virginian Pilot looks at this latter possibility. Here are excerpts:
The fastest and surest path to marriage for same-sex couples in some parts of the United States would be for the Supreme Court to surprise everyone and decline to get involved in the issue right now.
A decision by the justices to reject calls from all quarters to take up same-sex marriage would allow gay and lesbian couples in Indiana, Oklahoma, Utah, Virginia and Wisconsin to begin getting married almost immediately. Rulings in their favor have been put on hold while the Supreme Court considers their cases.
And if the high court leaves those rulings in place, same-sex couples almost certainly would win the right to marry in six other states in short order because those states — Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming — would be bound by the same appeals court decisions.
That would bring to 30 the number of states where same-sex marriage is legal, plus the District of Columbia.
Yet almost everyone who follows the issue for a living or otherwise thinks the Supreme Court will step in and decide gay marriage cases this term. The cases were on the agenda when the justices met in private Monday to decide new cases to hear this term. The court could announce a decision as early as this week.
If the court were to reject the appeals, it would leave untouched the laws in the other 20 states that still enforce same-sex marriage bans.
Both sides in the dispute also say the justices have an obligation to settle an issue of such national importance, not abdicate that responsibility to lower court judges. Opting out of hearing the cases would leave those lower court rulings in place.
Justice Ruth Bader Ginsburg appeared to be addressing that concern when she said in July that the court would not duck the issue, as it did for years with bans on interracial marriage.
Yet more recently, at a forum in Minnesota, Ginsburg suggested the court might refrain from taking any action unless an appeals court were to uphold a same-sex marriage ban, which would create a split among appeals courts that typically triggers Supreme Court review.
The take away? For now we wait, but here in Virginia, a failure of the Court to take the appeal in the Bostic case would make same sex marriage a reality in Virginia very quickly.
2 comments:
So, I'm no attorney, just an armchair quarterback, but here's my take on this. Ginsberg is correct in that, so far, no circuit has issued a differing ruling, so, from an appellate viewpoint, there's no dispute to settle. I'm almost good with that, as there are only a couple districts left, and if we do lose one, then the SCOTUS can step in.
From the SCOTUS perspective, I suspect that Roberts doesn't want to have to take a case, as he likely doesn't want to have to vote to satisfy the Tea Party, and have his name forever associated with this century's Dredd Scott decision.
Scalia may not want to take up a case because he may be afraid his side will lose the vote. Even if Roberts holds the conservative line, Kennedy is, as always a toss up, but likely leaning our way. I suspect the conservatives hardliners may want to holdout for some new "Republican" appointments.
Ginsberg and the progressives may be hesitant because they're not positive about Kennedy's vote. As noted above, I suspect he'd lean our way, but just the right case could cause him to vote against us. I'm not sure he's the shoe-in many people think.
I know it would be a longer and harder slog to have to win this thing one state/one district at a time, but it is a possibility.
I think your analysis is direct on target. There are likely competing reasons that the Court may decide to not take any of the cases. Should on of the other circuits rule in support of the state marriage bans, then the Court's hand would be forced. Time will tell. :)
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