Today the United States Supreme Court is scheduled to discuss seven petitions from five different states urging it to decide on the constitutionality of state laws excluding same-sex couples from marriage on a nationwide basis. The Supreme Court has complete discretion over whether or not to take a case. And no one knows if it will decide whether to take any of the cases at this time or defer its decision until a future conference this fall. Indeed, the Supreme Court will have a lot to cover at its first conference, with 53 petitions in other cases on its schedule as well. However, we could learn next week -- possibly as early as Tuesday -- whether it will take up the issue of the freedom to marry nationwide this term, with a substantive, definitive decision likely in June 2015.
The momentum toward marriage equality in the courts has accelerated at breakneck speed in the just over a year since the Supreme Court's landmark decision in United States v. Windsor invalidated Section 3 of the misnamed "Defense of Marriage Act" (DOMA), a statute that prohibited the federal government from recognizing the marriages of same-sex couples validly performed in states with marriage equality. Since Windsor, 27 federal courts have found state bans to be unconstitutional, with only one lower federal court upholding such a ban. Significantly, all four federal appellate decisions, from which the seven petitions to the Supreme Court come, favor equality. Judges ruling for the freedom to marry include appointees of Presidents Carter, Reagan, G. H. W. Bush, Clinton, G. W. Bush, and Obama. Federal District Judge Richard Young of Indiana described in his ruling the winning streak as a phenomenon "never" before "witnessed ... throughout the federal court system...." Similarly, 13 state courts have ruled in favor of marriage equality, with only one opposed.
The petitions before the Supreme Court arise out of federal appeals court decisions striking down marriage bans in five states: Indiana (Seventh Circuit), Oklahoma (10th Circuit), Utah (10th Circuit), Virginia (Fourth Circuit), and Wisconsin (Seventh Circuit). All the cases present the issue of whether or not a state may prohibit same-sex couples from marrying. However, the cases differ as well, and the justices likely will be considering these differences in determining which case or cases to take. Attorneys for same-sex couples in each of the cases have argued that the particular circumstances of their individual cases make them desirable for review.
One difference in the cases is that the Oklahoma case raises only the issue of whether a state may ban same-sex couples from marrying under its state laws, while the other states' cases also involve challenges to whether a state must recognize the marriages of same-sex couples who were validly married in other states. If the Supreme Court were to strike down state marriage bans nationwide, it would not need to decide if and when one state must recognize marriages performed in other states. Alternatively, if the Supreme Court declined to decide the issue nationwide or upheld state marriage bans, the issue of recognition of out-of-state marriages could be very important.
The various states' laws at issue in the petitions also differ. For instance, Wisconsin permits same-sex couples to enter into domestic partnerships, affording them limited legal rights, while the other states with petitions before the Supreme Court do not. The wording of the marriage bans and the history of the political campaigns to pass them vary from state to state. Procedural histories of the cases differ as well. For instance, in Virginia the attorney general, representing the state defendant, agrees that the ban is unconstitutional, and local county clerks are defending the state ban. In the other states, the state has uniformly defended the bans. The attorneys in each case differ too and include lawyers from groups that have been advocating for LGBT equality for decades, such as the National Center for Lesbian Rights, Lambda Legal, Gay and Lesbian Advocates and Defenders, and the ALCU.
The legal bases for striking down the bans also differ between the various federal appellate decisions before the Supreme Court. The appellate courts in the Oklahoma, Utah, and Virginia cases invalidated those state bans on the grounds that that they violated same-sex couples' "fundamental right to marry," while the appellate court in the Indiana and Wisconsin cases struck down those states' bans on the grounds that laws that discriminate on the basis of sexual orientation are entitled to elevated scrutiny under the U.S. Constitution. Windsor held that DOMA violated the Constitution's guarantees of both liberty and equality. Both issues, and very possibly the question of whether the bans constitute unlawful sex discrimination, will doubtlessly be argued before the Supreme Court regardless of which case or cases it takes. However, the Supreme Court justices may consider the logic or rationale of one or more of the appellate court decisions particularly useful for review.
Two additional federal appellate circuits will likely weigh in this fall as well. The Sixth Circuit heard cases arising out of marriage bans in Kentucky, Michigan, Ohio, and Tennessee in early August, and the Ninth Circuit heard cases from Idaho and Nevada in early September. From relevant circuit court precedent and the questions and comments the judges made at oral argument, most observers believe the Ninth Circuit will very likely rule in favor of equality, but the outcome of the Sixth Circuit cases is much harder to predict.
In remarks last week at the University of Minnesota, Supreme Court Justice Ruth Bader Ginsburg fueled speculation that the court might wait to determine whether or not to take a case until the Sixth Circuit rules. She stated that there would be "no need for [the Supreme Court] to rush" if the Sixth Circuit ruled in favor of the freedom to marry as all the other circuits that have addressed the issue since Windsor have done. However, she said that a Sixth Circuit ruling against equality would create "some urgency" for the Supreme Court to step in. It often takes cases to resolve disputes among the circuits.
Further, the Supreme Court will take a case if four of the nine justices vote to hear it. The Supreme Court has stayed decisions in the Fourth, Seventh, and 10th Circuits from taking effect until final resolution of the cases. If the Sixth and Ninth Circuits were also to rule in favor of equality, most observers believe it unlikely that the four justices who dissented in Windsor would simply let all the petitions be dismissed by voting to deny review -- effectively permitting marriage equality in 20 additional states located in those circuits. But if the Supreme Court held the petitions until a circuit court ruled against the freedom to marry, many thousands of LGBT Americans could have to wait even longer for a decision. Regardless of how the Sixth Circuit rules, the issue of marriage equality is in fact "urgent" for LGBT Americans, many of whom have been together for decades without legal recognition and protection.
Many of us would love to be a proverbial "fly on the wall" in the justices' conference chamber today, but we will of course have to wait until the Supreme Court makes public its decisions from the conference either next week or on October 6, the official beginning of the new term. Federal District Judge John E. Jones III, a George W. Bush appointee, wrote in his opinion invalidating Pennsylvania's marriage ban, "We are better people than what these laws represent, and it is time to discard them into the ash heap of history." That time cannot come too soon.
John Lewis and Stuart Gaffney, together for nearly three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. They are leaders in the nationwide grassroots organization Marriage Equality USA.