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New advice on how to handle same-sex marriage appeals

In the most specific advice so far on how the Supreme Court could handle the same-sex marriage cases, lawyers for an Oklahoma lesbian couple urged the Justices on Wednesday to consider two options:  a slimmed-down, one-issue, one-case review or a sweeping, all-issues, multiple-cases approach.

That filing also suggested that the Court might want to divide argument between two different constitutional tests for judging the validity of states’ bans on same-sex marriage.  The document was the closest thing the Court has so far seen to a distinct plan for review of the rapidly expanding caseload on the issue.  Up to now, filings have been largely focused on promoting specific petitions as the best candidates for review.

The Court now has four petitions on the issue: one from Oklahoma (Smith v. Bishop), one from Utah (Herbert v. Kitchen), and two from Virginia (Rainey v. Bostic and Schaefer v. Boston).  A third from Virginia has been promised (McQuigg v. Bostic), but has yet to reach the Court.

Many of the lawyers involved have been pressing the Court to take up the issue at their first private Conference, on September 29.  The Court and its staff, though, will make that call.  The Justices alone will decide what, if any, cases they will grant.

The Oklahoma filing on Wednesday came from lawyers for Mary Bishop and Sharon Baldwin, a Tulsa couple barred from marrying by state laws and by a state constitutional amendment approved by voters ten years ago.  Their case, filed the day after that ballot measure won approval, is the longest-running court challenge to be pursued against a series of state bans that were enacted in 20o4, soon after the highest state court in Massachusetts approved same-sex marriage under the state constitution.

As their case reached the Supreme Court, in a petition filed by the Tulsa county clerk who denied them a marriage license, it involves only the single issue of whether states may constitutionally refuse to open marriage equally to same-sex couples.  The state’s provisions have been struck down by the U.S. Court of Appeals for the Tenth Circuit.

In their lawyers’ response Wednesday to that petition, the first option suggested to the Court was to limit its review this Term to that one issue.  Noting that there are other cases pending, the brief asked the Court to consider accepting review only of this one, on whether same-sex marriages can be banned for same-sex couples wishing to wed.

Another question being pressed in other cases — whether the Constitution permits states to refuse to officially recognize same-sex couples who were legally married in other states — is not at issue in the Oklahoma case at this point.  The new brief noted that, in the wave of recent lower-court rulings on same-sex marriage, no federal appeals court has yet ruled on the “recognition” question.  The Court, it added, seldom takes on an issue without prior lower-court review.

Moreover, the brief commented, the “recognition” question is potentially more complicated as a constitutional matter.  Among the complications, it said, was whether states have a duty — under “comity principles” — to respect a legal marriage from another state.

The brief, however, then went on to propose an alternative: grant review of “multiple cases,” so that any resulting decision would involve a “wide geographical range” that would give it “a national flavor.”  That, the filing said, is what the Court did in the original school desegregation cases, and in other historic constitutional disputes.

The multiple-case approach, the lawyers argued, would help assure that there were parties able to continue the case through the review process, even if some were to drop out or not be qualified to be involved.

Moreover, the brief said, the three cases already at the Court involved three different states, each with its own history on the marriage issue.  That may not make any one of the pending cases “the optimal vehicle” for review, it commented, but the variety of state experiences “would enlarge the Court’s outlook and enhance its options.”

In another specific suggestion, the Oklahoma couples’ filing said the Court might want to hold two hours of oral argument, with the first focused on the question of whether state bans on same-sex marriage should be judged by a more demanding constitutional test, and a second proceeding on “the supposition” that the most tolerant test (“rational basis”) was the proper one.

If the Court wants to get into the marriage “recognition” issue, it could take the Oklahoma case and another petition which poses that question.

But, the brief said, “the sheer importance” of deciding the marriage issue “without undue delay” could suggest that the Court should grant multiple petitions, just to make sure that all of the issues are canvassed this Term and that no case “will unexpectedly go sideways” — that is, drop off for procedural reasons.  “This Court should not take a chance” on that, it argued.

Two responses have now been filed to the petition by state officials for review in the Virginia case.  One of those was filed yesterday, by a gay couple who want to marry and a lesbian couple who want their 2008 California marriage recognized in Virginia.  That brief promoted the Virginia case as “an excellent vehicle” for resolving “all facets of the marriage-equality question.”  That brief can be read here.

On August 22, other Virginia couples — representing a class of couples challenging the state’s ban — filed their response.  Their brief can be read here.  It argued that the Virginia case was ideal for Supreme Court review, because the two sets of challengers represent all same-sex couples in Virginia, and thus the case has a wider scope than most.

Meanwhile, the same-sex marriage controversy in Oregon appeared to reach an end on Wednesday.   A federal judge’s ruling in May striking down Oregon’s ban cleared its last court hurdle when the U.S. Court of Appeals for the Ninth Circuit dismissed an attempt to appeal that ruling by a private group, the National Organization for Marriage.  That group had no legal right to appeal, the order said.

Oregon for weeks has been counted as one of the nineteen states in which same-sex marriages are permitted, because state officials declined to appeal to defend their state’s ban.  NOM, a private advocacy group, sought to step in to make a defense, but that effort has now been thwarted by the Ninth Circuit’s order.

With the Oregon case dismissed, the Ninth Circuit now has three same-sex marriage cases, all coming up for hearings on the same day, September 8 — from Hawaii, Idaho and Nevada.   Hawaii is already counted as a state allowing same-sex marriage, because a state law permitting that was enacted last December.  The remaining issue before the Ninth Circuit is whether a federal judge’s 2012 decision upholding should be wiped out and the case dismissed as moot.

The Nevada case involves a federal judge’s ruling upholding that state’s ban, while the Idaho case involves an opposite ruling by a federal judge.

Recommended Citation: Lyle Denniston, New advice on how to handle same-sex marriage appeals, SCOTUSblog (Aug. 28, 2014, 12:06 AM),