The U.S. Supreme Court could announce as early as Tuesday ( September 30 ) which marriage equality case or cases it will accept for review this session. But, while the Court has seven marriage equality cases to choose from during its private working conference Monday ( September 29 ), it may not choose any of those seven for review.
"If there's no disagreement [among the circuits], then the Supreme Court has the option of not taking any case for a period of time," said Roberta Kaplan, who represented plaintiff Edith Windsor in landmark Supreme Court case that struck down the key provision of the Defense of Marriage Act last year.
Justice Ruth Bader Ginsburg made just that point in remarks September 16 at a University of Minnesota Law School forum. Her host asked Ginsburg to comment generally on marriage equality cases before the high court and discuss whether she thinks the court will and should take a case "as soon as possible."
"So far, the federal courts of appeal have answered the question the same way holding unconstitutional the ban on same-sex marriage," said Ginsburg. "There is a case now pending before the Court of Appeals for the Sixth Circuit. Now, if that court should disagree with the others, then there will be some urgency in the courts for taking the case. But when all the courts of appeal are in agreement, there's no need for us to rush to step in. It remains to be seen what the Sixth Circuit would rule, when it will rule. Sooner or later, yes, the question will come to the court…."
Her comments attracted attention from Supreme Court observers because the court had been rather quick to put the seven cases on its list for discussion at its first big "long" conference. But Ginsburg was basically voicing what many such observers already know: The Supreme Court is more keen on taking appeals when there's a disagreement among the circuits.
So far, four appeals courts have ruled such marriage bans unconstitutional: the Ninth ( in last year's Proposition 8 case ), the Tenth ( Utah and Oklahoma ), the Fourth ( Virginia ), and the Seventh ( Wisconsin and Indiana ).
Another Ninth Circuit panel heard oral arguments September 8, in cases challenging bans in Hawaii, Nevada, Idaho, and Oregon, but it widely expected to find once again that the bans are unconstitutional.
But a three-judge panel of the Sixth Circuit U.S. Court of Appeals heard arguments August 6 in cases from Kentucky, Michigan, Ohio, and Tennessee, and it seemed to signal it was prepared to uphold state bans on marriage for same-sex couples. That would create a conflict, but the panel has not yet released its opinion. If there was anything unusual about Ginsburg's comments last week, it was that she expressed, very diplomatically, the widespread impression that the Sixth Circuit is likely to uphold the bans.
Kaplan thinks Ginsburg's remarks are a strong indication that the Court is more likely to accept a case from a circuit that disagrees with the others either the Sixth or the Fifth circuit. The Sixth Circuit decision could be released any day now; the Fifth, which covers Texas, Louisiana, and Mississippi, recently gave the state of Texas an extension of time ( until October 10 ) to file its final brief in Perry v. DeLeon.
If the Supreme Court declines to review one of the pending marriage cases this session, said Kaplan, it would have to lift the stays currently in place.
"Then marriages between gay couples could happen in a whole bunch of new states," she said. That would enable same-sex couples to get married in 12 additional states: Utah, Wyoming, Colorado, New Mexico, Kansas, and Oklahoma in the Tenth Circuit; Virginia, North Carolina, South Carolina, and West Virginia in the Fourth Circuit; and Wisconsin and Indiana, in the Seventh Circuit. Added to the 19 states that already enable same-sex couples to marry, and the count will stand at 31 and the District of Columbia.
That seems unlikely.
So, if and when it takes a case, does it matter which marriage equality case the Supreme Court accepts? Does it change the prospects for the decision if it takes a case where the ban has been upheld? Does it matter whether the attorneys arguing the case are seasoned veterans before the Supreme Court?
Constitutional law legend Laurence Tribe, the Harvard law professor who argued against state bans on same-sex sexual activity in the 1986 Bowers v. Hardwick case, says, "It could matter in a large number of ways" but he was "disinclined to speculate about at this point."
Lambda senior attorney Jenny Pizer offered some ideas. Though she and others agree the "core arguments will be very similar regardless of which case or cases the Supreme Court takes," Pizer noted that there can be interesting and important ancillary arguments.
"For example, if the Ninth Circuit rules as many anticipate and invalidates the marriage bans …the Supreme Court would have the heightened scrutiny for sexual orientation classifications question presented more squarely because that is currently the law of the circuit," said Pizer. "If they take the Baskin [case] out of [Indiana in] the Seventh, there are issues of emergency relief in the context of serious illness that might influence the Court's analysis and timing. If they take Bostic out of Virginia, there could be a strong temptation to talk more about the historical parallel [with the ban on interracial marriage, in Loving v. Virginia]. And I have to wonder if the same would be true if they were to take [the] Kitchen [case] out of Utah, given the unique history of that state's marriage laws [and polygamy]."
Shannon Minter, legal director for the National Center for Lesbian Rights, noted that state officials are "vigorously" defending the ban in the Utah case, in which NCLR and Gay & Lesbian Advocates & Defenders are helping represent plaintiff couples. The Supreme Court might favor such a case to avoid any procedural snag like it faced in the California Proposition 8 case, which was appealed by a third party which lacked legal standing to file the appeal.
Lambda Legal's national Legal Director Jon Davidson said attorneys for all the cases think their case is a particularly good vehicle for review, but said, "The questions presented for review are essentially the same in all these cases."
As for whether it matters if seasoned Supreme Court attorneys present the arguments for plaintiff couples, Tribe and others said it probably doesn't matter.
"As long as they're sufficiently 'seasoned' not to make any ridiculous concessions or to overreach in any foolish ways," said Tribe, "this is not the kind of case in which counsel's arguments are likely to make much difference."
"There are slight issues in terms of whether a state's attorney general is defending the law, but other than that," said Kaplan, "the legal arguments and the plaintiff facts are virtually identical" in all seven cases.
Evan Wolfson, head of the national Freedom to Marry group and a participant in the early marriage cases, agreed.
"All of the cases that have reached the Court present compelling stories from the plaintiffs, and all are in good hands with strong lawyer teams. Each lawyer, of course, would like to be the one who gets to stand before the Court, but the reality is that, whichever case the Court chooses and whichever lawyers are the lead, it is the strong collective presentation we will make together on top of the friend-of-court briefs, the rulings from the more than 30 wins below, and the records and arguments the justices have already considered last year that will matter."
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