UPDATE Tuesday 1:48 p.m.   The Virginia county clerk seeking a delay of a federal appeals court decision striking down the state’s ban on same-sex marriage told the Supreme Court Tuesday that she does not oppose converting that request into a formal petition for review of the case.  Her filing clears the way for the Court to act at least on the stay request, ahead of a Thursday morning date for the appeals court decision to take effect.

Meanwhile, the U.S. Court of Appeals for the Ninth Circuit refused to take up before the en banc court as the first step in its consideration of the appeal by the state of Idaho from a district court ruling nullifying its ban on same-sex marriage.   The order is here.  The case thus will be heard on September 8 by a three-judge panel.

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State officials in Virginia urged the Supreme Court on Monday to put on hold a federal appeals court decision striking down the state’s ban on same-sex marriage, but they also asked the Justices to move to decide that constitutional issue “as quickly as possible.”  Lawyers for two groups of same-sex couples in Virginia opposed delay, but they also asked the Court — if it does order a postponement of that lower court decision — to move ahead swiftly to rule on the core question.

One of the three new filings urged the Court to arrange to act on whether it will review that question at its “next Conference” — that is, the private gathering that the Justices will hold on September 29, ahead of the formal opening of the new Term.  At that Conference, the Justices will begin adding new cases for decisions to be issued by early next summer.

The new filings in the Virginia case are herehere, and here.

It now appears that the Court, at an early opportunity, will have at least two cases from which to choose if it wants to take on the same-sex marriage issue promptly — a Utah case that is moving on a fast track and the Virginia case.  The Virginia case actually involves two petitions — one already there, and another promised.  The state’s brief argued that the two Virginia filings should both be granted now, by acting as if the second petition were already on file.

A third case, from Oklahoma, does not appear so far to be moving as rapidly as the others.  Other federal appeals courts are also expected to issue rulings on state bans within coming weeks; all are working on the cases on an expedited basis.

Defenders of state bans have asked the Court to step into the continuing controversy because, they have argued, there is already a split among the federal courts of appeals.  The three most recent rulings by appeals courts against state bans — one by the Fourth Circuit and two by the Tenth Circuit — are contradicted by a 2006 decision by the Eighth Circuit, they have said.

One of the new filings in the Virginia case — by same-sex couples — disputed that claim of a conflict, arguing that the Eighth Circuit’s decision upholding a ban in Nebraska came several years before the Supreme Court’s decision last year in United States v. Windsor.  While that decision did not rule on the authority of states to prohibit same-sex marriage, its reasoning has been widely used since then by lower courts in nullifying such bans.  The Windsor decision struck down a key part of the federal Defense of Marriage Act that denied federal marital benefits to same-sex couples who already were legally married under state laws.

The state’s reply brief did not suggest a specific timeline for the Court to act, but comments within that brief suggested that the Justices might not need any additional filings before they took action on granting the Virginia case.  If the pending request for delay of the Fourth Circuit ruling, by a county clerk in Virginia, is accepted now as if it were a petition for review, and with briefing now completed on that request, “the table is set and the necessary participants are present,” state officials said.

That seemed to imply that the filings now before the Court would be adequate to enable the Justices to act swiftly to take on the fundamental issue of state power.

The brief by one group of Virginia same-sex couples suggested that, if the recent trend of lower court rulings nullifying state bans continues, there may actually be no need for the Court to step in.  “The federal courts have had little difficulty resolving litigation on the question presented without the need for further direction” from the Supreme Court, that document suggested.

With the march of decisions in lower courts, “the need for this Court’s intervention has declined substantially” since the Supreme Court stepped in to delay lower-court decisions dealing with the situation in Utah, those couples argued.  “Should other courts of appeal continue to follow the current consensus,” their brief added, the Court’s intervention may yet prove unnecessary altogether.”

The procedural situation that now confronts the Court on the Virginia part of the controversy is that the state has its petition for review already pending, the county clerk who is defending the ban because state official are no longer doing so has filed only a stay application but has promised to file her own petition for review.

But all three filings on Monday suggested that the Court treat the county clerk’s stay plea as itself a petition for review, so she would not have to go ahead with a separate petition to put the matter before the Court.  In that situation, the state urged the Court to grant both its petition and the newly converted one of the county clerk.  The same-sex couples’ filings explicitly endorsed a grant only of the county clerk’s converted petition.

While the state argued in favor of a stay of the Fourth Circuit decision in the meantime, the two sets of same-sex couples opposed any delay of that decision, saying that the harm would fall on the same-sex couples who desire to be married or who are already married and want their marriages officially recognized by the state.

With the filing of the responses, Chief Justice John G. Roberts, Jr., who handles emergency matters from the Fourth Circuit area, is in a position to act at any time, either on his own or by sharing the issue with his eight colleagues.  In view of the pleas to treat the county clerk’s stay request as if it were a new petition, the likelihood is that the Chief Justice will, in fact, share this with the other members of the Court.

The Fourth Circuit decision is now scheduled to go into effect Thursday morning, so that amounts to a kind of deadline for the Supreme Court to decide whether to put that ruling on hold for the time being.

Posted in Cases in the Pipeline, Featured, Same-Sex Marriage, Same-Sex Marriage Post-Windsor

Recommended Citation: Lyle Denniston, Rapid action on same-sex marriage urged (FURTHER UPDATED), SCOTUSblog (Aug. 18, 2014, 5:49 PM), http://www.scotusblog.com/2014/08/rapid-action-on-same-sex-marriage-urged/