Matching the speed of lawyers and lower courts in handling the same-sex marriage controversy, the Supreme Court on Wednesday set the stage for its first look at all of the pending cases, when the Justices assemble on September 29 for a private Conference.

Seven petitions — three from Virginia, and one each from Indiana, Oklahoma, Utah, and Wisconsin — will be submitted to the Justices at that session.  There is, of course, no certainty that they will act on any or all of them at that point, but the option is there.  With all sides agreeing that the time to rule is now, it would be a surprise if the Court opted to bypass the issue altogether in its new Term.

In order of their filing at the Court, these are the cases:  Herbert v. Kitchen (Utah), Smith v. Bishop (Oklahoma), Rainey v. Bostic (Virginia), Schaefer v. Bostic (Virginia), McQuigg v. Bostic (Virginia), Bogan v. Baskin (Indiana), and Walker v. Wolf (Wisconsin).

Together, the petitions raise two constitutional questions:  do states have power to refuse to allow same-sex couples to marry, and do states have power to refuse to recognize same-sex marriages performed in other states?  In all of the federal appeals courts’ decisions being challenged in these cases, state marriage bans of one or both of those kinds were struck down under the federal Constitution, either under equal protection or due process guarantees, or both.

Some of the petitions also ask the Court — for the first time — to specify a standard for judging the constitutionality of laws that are challenged in gay rights cases.  The Court has had a significant number of rulings, largely in favor of gay rights in recent years, but it has never said just what constitutional test it is using.  In the rulings over the past fifteen months in lower federal courts, judges have applied several variations of constitutional tests, from relaxed to rigorous, but always with the same result — nullifying state bans.

Another issue that some petitions want the Court to resolve is whether, in fact, the Justices settled this issue years ago, against same-sex marriages.  That was a 1972 summary decision — that is, without briefs and oral argument — in the Minnesota case of Baker v. Nelson.   There, the Court dismissed a plea to open marriage to same-sex couples, which it said did not involve a “substantial federal question.”

The Supreme Court has never questioned that decision, but lower courts recently have routinely ruled that more recent Supreme Court rulings on gay rights have made that decision basically a dead letter.

The most important Supreme Court precedent on which lower courts have been relying in the recent rulings is United States v. Windsor, the decision in June of last year striking down the 1996 congressional ban on federal marital benefits for same-sex couples already legally married under state law.  That decision on the Defense of Marriage Act did not settle the constitutionality of state action against same-sex marriage, but lower courts have read its rationale more widely in finding such bans to be invalid.

It has taken only a little over a year for the same-sex marriage issue to return to the Court, with the focus solely on state bans, and lawyers on both sides of the controversy have been moving very rapidly to get the issue prepared for the Supreme Court after lower courts had expedited their review.  In none of the seven petitions that the Court will be examining is anyone involved resisting Supreme Court review.

The Court’s own staff also has moved with dispatch.  Some of the seven petitions that will go to the Justices late this month were filed just the day before they were distributed to the Justices — almost unheard of at the Court.

Although no one at the Court said this explicitly, the Justices apparently wanted all seven of the petitions so far filed to be ready for the September 29 Conference, which is to be held a week before the new Term formally opens.  The seven petitions present a variety of scenarios with regard to who is appealing and what they are asking.  There is no way for outsiders to know exactly what the Justices will be looking for as they go over the seven filings.

Those petitions almost certainly will not be the last that the Supreme Court sees in the coming Term.  Two other federal appeals courts are poised to rule quite soon, and a third has a case before it but has not yet scheduled a hearing.

The Court, however, need not await the arrival of any other petitions, if it is prepared to take on the controversy itself promptly.

If the Court does grant review of any same-sex marriage cases any time up to the middle of January, a final decision would be expected by next summer.


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

Recommended Citation: Lyle Denniston, Same-sex marriage cases set for early look, SCOTUSblog (Sep. 10, 2014, 4:51 PM),