Wasting no time on debating the potentially thorny issue of same-sex couples’ marriage rights -- almost certain to divide the Supreme Court in the same way it has the nation -- the justices are officially discussing five marriage equality cases during their first pre-session conference agenda.
The purpose of Monday's closed-door meeting is to discuss which, if any, cases the Supreme Court will review in the upcoming term, which begins on October 6. Seven requests, known as petitions for writ of certiorari, have been made for the justices to hear challenges against five same-sex marriages bans -- Indiana’s, Oklahoma’s, Utah’s, Virginia’s, and Wisconsin’s -- all of which have been found unconstitutional at both the district and appellate levels.
Despite the past year’s wave of marriage equality litigation, however, the Supreme Court is not required to grant review to any of the cases before it. And Monday's meeting, while an encouraging sign that the issue is at least prominently featured on the justices’ radar, does not mean that they will be taking up any of those five lawsuits.
Nevertheless, many on both sides of the debate believe the high court will soon consider and decide once and for all whether gay and lesbian couples have a constitutional right to wed. Here’s why:
1. Pressure is building from both sides of the debate
In a somewhat unusual move, the plaintiffs in all five marriage equality cases have joined the defendants in asking for Supreme Court review. Typically, it’s just the losing side of a lawsuit that will appeal. Were the justices to deny cert to all of the cases now before them, marriage equality would be legal throughout the 4th, 7th, and 10th Circuits, adding 11 states where gay and lesbian couples can legally wed. But that wasn’t enough for these same-sex couples. By pushing for Supreme Court review, the plaintiffs are showing that they’re confident enough that the justices will not only uphold the lower court’s ruling, but also legalize marriage equality throughout the nation.
A number of others have also filed “friend of the court” briefs urging the justices to take up a case. Earlier this month, 32 states on both sides of the marriage equality divide asked the high court to declare who’s right. Shortly after, a group of churches opposed to marriage equality -- including the Church of Jesus Christ of Latter-day Saints, the United States Conference of Catholic Bishops, the National Association of Evangelicals, the Ethics & Religious Commission of the Southern Baptist Convention, and the Lutheran Church-Missouri Synod -- filed a joint amicus brief as well, asking the justices to settle the issue nationwide. Given this mounting pressure, it seems unlikely the Supreme Court would refuse to hear a case.
2. Sheer momentum
Since the Supreme Court struck down a key portion of the federal Defense of Marriage Act (DOMA) last year and cleared the way for the U.S. government to begin recognizing same-sex nuptials, there has been an unprecedented wave of legal triumphs for the marriage equality movement. Out of 81 cases pending in 32 states, gay and lesbian couples have prevailed 40 times and lost only twice in both state and federal court. No ban has yet survived at the appellate level since DOMA, leaving the high court without a “circuit split” to resolve. But many legal experts believe the justices would still take up a case on the grounds that marriage equality is a matter of public importance -- one of the criteria for granting cert.
3. Ginsburg has outright said so
In a July interview with the Associated Press, Justice Ruth Bader Ginsburg said the Supreme Court wouldn’t “duck” the issue of marriage equality. "If a case is properly before the court, they will take it," said the 81-year-old, adding that she expects the matter to be decided by June 2016, if not a year earlier. Ginsburg has in the past advocated for “judicial restraint,” criticizing the landmark Roe v. Wade decision for going too far. That ruling, which guaranteed a woman’s right to choose to have an abortion during the first two trimesters, gave opponents ammunition to say that national policy was being set by “unelected old men,” said Ginsburg during a 2013 address at the University of Chicago Law School.
Some speculated that the remarks had implications for upcoming marriage equality cases -- one, the DOMA suit; and the other, a challenge to California’s now-defunct ban known as Proposition 8. And perhaps Ginsburg will still want to be cautious about issuing a sweeping same-sex marriage ruling. But the 16 months since her Chicago speech has profoundly changed the marriage equality movement (see section 2: “Sheer momentum,”) and perhaps transformed the legal landscape in such a way where “judicial restraint” is no longer necessary or even possible.
4. ... so has Reinhardt
The latest appeals court to weigh marriage equality has been here before. In 2012, the 9th Circuit Court of Appeals found Prop 8 unconstitutional in that it “serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California.”
Little seems to have changed in the mind of Judge Stephen R. Reinhardt, who authored the Prop 8 ruling and served on a three-judge panel earlier this month that pummeled arguments in defense of same-sex marriage bans. Amid the blows, Reinhardt also offered up his best bet on who may have the last word regarding marriage equality.
“I think you’re going to have an opportunity to find out what Justice Kennedy really thinks,” he said, referring to the justice’s DOMA opinion. That ruling affirmed both states rights, and the basic dignity of gays and lesbians – two concepts seemingly at odds when it comes to same-sex marriage bans. If Reinhardt’s prediction proves accurate, it’ll be Kennedy who’ll soon clear up the confusion.
5. SCOTUS has already gotten involved
Many were upset last month when the Supreme Court blocked a ruling that legalized marriage equality in Virginia, hours before it was slated to take effect. The move was hardly a surprise -- twice this year, the justices had already halted marriage equality from going forward, both times in Utah. As frustrating as the decision was for same-sex couples, however, legal analysts saw a silver lining.
“This makes it even more clear that the Supreme Court has to take up this issue, and is going to take up this issue,” said James Esseks, director of the ACLU Lesbian Gay Bisexual and Transgender Project, last month to msnbc. “It doesn’t work for the court to say, ‘No these rulings don’t apply yet,’ and for the court to not take up the issue.”
The argument goes like this -- If the Supreme Court had no intention of hearing the case, and in turn, allowing same-sex marriages to go forward in Virginia (as well as in the other states that make up the 4th Circuit,) why issue the stay? Why would the justices bother blocking gay and lesbian couples from marrying now, only to let them marry anyway in a matter of months?
Answer: they wouldn’t. By denying same-sex couples marriage rights in Virginia and Utah, the Supreme Court may have been positioning itself to grant those rights later on across the nation.
This story was originally published on September 11, 2014.