If they weren’t already, LGBT advocates hoping for a swift Supreme Court ruling on marriage equality may want to start paying close attention to the 6th Circuit Court of Appeals – and pray for a loss.
That’s at least the wisdom gleaned from Justice Ruth Bader Ginsburg, who told an audience at the University of Minnesota Law School Tuesday that “there will be some urgency” if that appeals court allows same-sex marriage bans in Kentucky, Michigan, Ohio, and Tennessee to stand. On the flip side, said Ginsburg, if the 6th Circuit carries on the unbroken string of appeals court victories for gay and lesbian couples, there will be “no need for [the justices] to rush.”
The 81-year-old’s remarks, reported by the Associated Press, come just under two weeks before the high court justices are set to convene for their first pre-session conference on September 29. The purpose of the closed-door meeting is go over which – if any – cases the Supreme Court will review in the upcoming term, which begins October 6. Last week, the justices sent an encouraging sign that they will take up the marriage equality issue by announcing their Sep. 29 agenda would include discussion of seven requests, known as petitions for writ of certioriari, to hear challenges against same-sex marriage bans in Indiana, Oklahoma, Utah, Virginia, and Wisconsin.
All of those bans were found unconstitutional at both the district and appellate levels, adding to a growing wave of legal triumphs for same-sex couples that many believe will end with a broad Supreme Court ruling. Yet despite the momentum, the justices are not required to grant review to any of the cases before them.
Ginsburg, one of the most liberal justices on bench, has said before that the Supreme Court wouldn’t “duck” the issue of marriage equality, telling the Associated Press in July that “if a case is properly before the court, they will take it.” But her remarks Tuesday offered the clearest indication yet that the justices are ready and willing to settle the matter nationally, and waiting for the right opportunity.
As it stands, no ban on same-sex nuptials has survived at the federal appellate level, leaving no “circuit split” for the Supreme Court to resolve. That could change any day now, as the nation awaits a ruling from the Chicago-based 6th Circuit Court of Appeals, which appeared skeptical last month of the idea that same-sex marriage bans were unconstitutional.
Many argue that a loss in the 6th Circuit isn’t necessary for the issue to end up before the high court in that the justices could still take up a marriage equality case on the grounds that it addresses a matter of public importance – one of the criteria for granting cert. But as Ginsburg pointed out, a loss wouldn’t hurt.