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Last of first-round same-sex marriage cases is in

The last in the first round of new same-sex marriage cases to reach the Supreme Court — an appeal by a county clerk in Virginia — was filed on Friday, and it offered the Court a variety of options for confronting the constitutional controversy.  While making a plea that this case be the one chosen for review, it also accepted being put on hold if the Court were to choose to move ahead with another case instead.

A key facet of the new petition, McQuigg v. Bostic (not yet assigned a docket number), was a suggestion that the Court put its primary focus on the basic issue of state power to restrict marriage to opposite-sex couples, thus leaving aside for now the separate issue of state authority to refuse to recognize already existing same-sex marriages.  Even so, the new filing also gave the Court an optional bit of advice about taking on the recognition issue, too.

The petition filed for Prince William County Clerk Michele B. McQuigg is now the fifth to reach the Court on the controversy after a wave of lower court rulings — striking down state bans in almost all of the cases so far — that had followed the Supreme Court’s decision fourteen months ago in United States v. Windsor, on the federal Defense of Marriage Act.   Other cases are moving toward the Court, but none of those is yet ready for a petition to be filed because they are awaiting appeals court decisions.

The normal timing rules of the Supreme Court may mean that the McQuigg petition was filed too late to be ready for the Justices to examine at their first private Conference of the new Term — on September 29.   That is the session at which lawyers in other cases have been aiming as they hurried to file the needed papers.

If the Court opts to consider the new petitions as a group, the later filing of the McQuigg petition could slow down the process.   But, if the Court turns out to be ready to grant review of another case, it may not be a problem that Clerk McQuigg’s case followed the others by a few days.

The timing issue may also not make much difference to Court review of same-sex marriage in general, because a grant of any case on the issue up to late January would probably assure a decision before the Term ends early next summer.   But lawyers on all sides in the five pending cases have been pressing for an early commitment by the Court to rule, as part of the strategy of emphasizing the historic importance — and urgency — of the question.

As has happened in the other pending cases, the lawyers for Clerk McQuigg sought to persuade the Court that this particular case was a proper one for confronting the basic issue of banning same-sex marriage.  The petition argued that, as the test of Virginia’s ban developed in the courts, she was the one official in Virginia who had made the widest-ranging defense of the ban and its underlying public policies.

She is in a better position to raise the core issue of whether marriage must be open to same-sex couples, the filing asserted, than is the records registrar who filed the state’s petition in the Supreme Court.  There is a question, according to the McQuigg petition, whether that official has a legal right to raise the right-to-marry issue.

Moreover, the clerk’s petition argued, the Supreme Court is already familiar with her case, because she is the one who persuaded the Justices to put the Virginia case temporarily on hold after the U.S. Court of Appeals for the Fourth Circuit struck down the state ban and refused to delay the effective date of that decision.

In making Clerk McQuigg’s arguments, the new filing contended that the other constitutional issue — over states’ refusal to recognize existing same-sex marriages performed in other states — would not add much to the Court’s review of the right-to-marry question, so the Justices just might want to keep that second question for later.

But, if the Court were to prefer to take on that issue, too, the petition said that it could do so by granting review of the state registrar’s petition, on the sole question of state refusal to recognize existing marriages from other states, while reviewing the right-to-marry issue in another case.  The registrar is in a proper legal position to raise the recognition issue, but court clerks like McQuigg are not, according to the petition.

Following the series of lower-court rulings on same-sex marriage, petitions posing that issue began arriving at the Court on August 5.  In the twenty-four days since then, the other four petitions have come in, so at this stage cases from Oklahoma and Utah are close to being ready for the Justices to consider promptly, as are at least two of the three petitions about Virginia’s ban.

Whether the Court is prepared to step into the controversy at an early point may depend upon whether the Justices are convinced that there is a split on the core issue among lower federal appeals courts.  There is a split, but it depends upon taking into account an appeals court decision years before the Court’s ruling last year in the Windsor case.   Every federal court ruling on the issue since then has resulted in a nullification of state bans, relying on the reasoning in the main Windsor opinion.

The Justices may want to wait to see if a new split is going to develop at the appeals court level.  Many observers now appear to believe, in the wake of a recent hearing before the U.S. Court of Appeals for the Sixth Circuit, that that court may uphold one or more state bans in the four cases it heard.

The Court of Appeals for the Seventh Circuit heard cases from Indiana and Wisconsin this week, and the U.S. Court of Appeals for the Ninth Circuit is scheduled to hear cases from Hawaii, Idaho, and Nevada a week from Monday.

Recommended Citation: Lyle Denniston, Last of first-round same-sex marriage cases is in, SCOTUSblog (Aug. 29, 2014, 2:14 PM),