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Is a same-sex marriage case inevitable for the Supreme Court this year?

Posted: October 6, 2014 9:24 a.m.
Updated: October 6, 2014 9:23 a.m.
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Today is the earliest America will learn whether or not the Supreme Court will hear one or more appeals of decisions involving same-sex marriage. While many expected an announcement from the justices this week on whether or not the high court would hear one of seven same-sex marriage cases in which a ruling is being sought, no decision was announced.

 

(C-I Editor's note: as this item went live on our website, national media outlets began reporting that the U.S. Supreme Court turned away appeals on same-sex marriages from five states.)

Today is the earliest America will learn whether or not the Supreme Court will hear one or more appeals of decisions involving same-sex marriage. While many expected an announcement from the justices this week on whether or not the high court would hear one of seven same-sex marriage cases in which a ruling is being sought, no decision was announced.

The first day of the court’s new term is today. If the court decides to hear one or more of the cases, this could be announced now, or even later in the year, hence the waiting game. The stakes -- for supporters and opponents -- are high, since a ruling might settle the question on a national basis.

The five states each hope to have the court decide whether or not a ban on same-sex marriage, or a definition of state-recognized marriage as being solely between one man and one woman, is constitutional. Should the justices find a “right” to marry in the Constitution, this could trigger decades of debate and protest, just as the 1973 Roe v. Wade decision did.

The issue of whether or not same-sex couples can legally marry has dogged the high court for several years. In June 2013, the Supreme Court struck down the 1996 federal Defense of Marriage Act, or DOMA, and allowed same-sex marriages to resume in California.

The DOMA decision, longtime Supreme Court journalist Lyle Denniston wrote at SCOTUSBlog.com, “set off nearly three-dozen rulings by lower federal courts, striking down (with only one exception) state bans on such marriages.”

Not deciding to hear the current appeals, Denniston notes, “would trigger the full implementation of appeals court decisions that would spread in a short period of time to 11 more states beyond the 19 (along with Washington, D.C.) that currently allow same-sex marriage. That would almost certainly add an inevitability to the campaign to win same-sex marriage rights across the nation.”

It appears the question of whether or not to hear a same-sex marriage appeal might hinge on the amount of disagreement among those lower federal circuit courts.

Differing opinions among the circuit courts of appeal are what the Supreme Court looks for in situations such as this, associate Justice Ruth Bader Ginsburg said recently, according to the Associated Press. “At a forum in Minnesota, Ginsburg suggested the court might refrain from taking any action unless an appeals court were to uphold a same-sex marriage ban, which would create a split among appeals courts that typically triggers Supreme Court review.”

And that could happen sooner rather than later. “Two other appeals courts, in Cincinnati and San Francisco, could issue decisions any time in same-sex marriage cases,” the AP reported. “Judges in the Cincinnati-based 6th Circuit who are weighing pro-gay marriage rulings in Kentucky, Michigan, Ohio and Tennessee, appeared more likely to rule in favor of state bans than did the 9th Circuit judges in San Francisco who are considering Idaho and Nevada restrictions on marriage.”

Utah was the first to appeal a circuit court ruling to the high court, asking the justices to lift the “vast cloud covering this entire area of the law.”

“It comes down to this: Thousands of couples are unconstitutionally being denied the right to marry, or millions of voters are being disenfranchised of their vote to define marriage,” the state wrote.

Many same-sex marriage advocates also want the high court to take up the matter. An attorney representing same-sex couples said the case was particularly well-suited for Supreme Court review because it addresses both the right to marry and recognition of gay and lesbian marriages performed in other states.

“It’s just a very straightforward, sound case that would allow the court to resolve this issue,” Shannon Minter, legal director of the National Center for Lesbian Rights, said.

Email: mkellner@deseretnews.com, Twitter: @Mark_Kellner

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