No Action on Same-Sex Marriage Cases

No Action on Same-Sex Marriage Cases January 13, 2015

The Supreme Court was expected to announce whether they would hear appeals of several cases involving state same-sex marriage bans on Monday, when they release the week’s orders, but they chose not to do so. It’s not clear that they discussed those cases at all at last Friday’s conference, but they’re now scheduled to do so this Friday.

The Justices have a private Conference scheduled for Friday of this week, and the other cases, from the Sixth Circuit, may be considered then. A final word on that scheduling may come before the end of the day Monday.

Since the Court refused on October 6 to grant review of the first round of same-sex marriage appeals to reach it after a wave of federal and state court rulings over an eighteen-month span, a split developed when the Sixth Circuit in early November upheld the bans in Kentucky, Michigan, Ohio, and Tennessee, leading to a second round of appeals to the Justices.

Together, those four new cases raise the questions of both state power to prohibit same-sex marriages at all and the state power to refuse to recognize same-sex marriages performed elsewhere. Among the four new cases, the Kentucky case raises both questions, while the cases from the three others raise one of the two questions. The Court has the option of granting one or more of the cases or of denying all of them — an unlikely prospect, in view of the direct conflict among lower court rulings.

If the Court were to take on the issue, it probably would schedule a hearing for the final argument session of the year, in late April. A final decision could come before the summer recess.

It is widely believed that the fact that the 6th Circuit Court of Appeals upheld state bans on same-sex marriage, becoming the first to do so after several circuits overturned them, all but guarantees that the Supreme Court will take up the issue. If they do, it should be announced next Monday. I think they’ll take them, both because of the circuit split and because they will want to avoid putting it off for a year and then issuing a ruling in the middle of a presidential campaign. I still expect the court to overturn all such state laws at the end of June this year.

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