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The US supreme court is asked to review more than 7,000 cases each year, but legal experts agree the justices will almost certainly take up one particular case that has provoked a stack of debate: same-sex marriage.
And with the nation’s highest court holding its first discussion on what to put on this term’s docket at the end of the month, the question of whether the court will offer a definitive ruling on same-sex marriage is increasingly a matter of when, not if.
“This is an issue of such national importance and it’s affecting so many states, that I think that there is very little chance the supreme court is going to avoid it,” said Dale Carpenter, a constitutional law professor at the University of Minnesota.
The US supreme court’s landmark June 2013 decision overturned parts of the Defense of Marriage Act, a federal law that said marriage can only exist between a man and a woman. The court’s ruling, however, did not specify if that decision could be made by states. Over the past year or so, a rush of cases have resulted in a slew of court rulings that found state bans on same-sex marriage to be unconstitutional.
The justices are under pressure from outside groups: the Mormon church and four other religious groups filed court papers last week asking the court to weigh in, as did Pfizer, Target and 28 other major companies.
“I think the justices are pretty impervious to that,” said Carl Tobias, a University of Richmond law professor. “They do whatever they want to, to some extent.”
The court could be pushed to act if a circuit court makes a decision that contradicts the streak of rulings so far.
“It’s harder for the justices to tolerate it if you have different legal regimes in different parts of the country, but we don’t have that yet,” said Tobias. “That’s the big question mark.”
With three circuits due to announce decisions, this could become a reality. The seventh circuit struck down bans last week, the sixth circuit is due to make a decision after having heard oral arguments last month, and the usually conservative fifth circuit is set to have oral arguments on a Texas case soon.
So far, however, court watchers anticipate that the supreme court could take one of three cases that have already been briefed in the court: the 10th circuit case that determined Utah’s same-sex marriage ban to be unconstitutional, or the two fourth circuit cases from Virginia.
The Virginia cases could benefit from the experience of the attorneys involved. The plaintiff’s attorneys in one of the Virginia cases, Bostic v Schaefer, are Ted Olson and David Boies, who helped take down California’s voter-approved same-sex marriage ban in the supreme court last year. Paul Smith, an attorney on the other Virginia case, has argued multiple cases before the supreme court, including for the plaintiffs in Lawrence v Texas, which struck down state sodomy laws, making same-sex sexual activity legal in every state.
Carpenter said a lawyer’s experience is not essential, but improves the chances of a case getting picked up: “Because the justices are familiar with the attorneys, and they know whether they think they are good or not.”
The court can choose to take one or multiple cases that deal with whether a state can ban same-sex marriage in its own state, and likely alongside that, even if they do ban same-sex marriage, whether a state must they recognize same-sex marriages performed lawfully out of state.
“Just in the interest of judicial economy, and only having to go through this once, they would probably want to take one case that had both issues or take at the same time one case that posed issue and one that posed the other,” said Dan Ortiz, a constitutional law professor at the University of Virginia.
But when will they take up the issue? Court watchers agree almost unanimously that it will be taken up this term, though probably later in the session after giving other appeals courts time to make rulings and file briefings.
“Sometimes, on a big issue like this, the supreme court prefers to wait, and let the issue percolate in the lower courts for a little while,” said Steve Sanders, a law professor at Indiana University at Bloomington’s Maurer school of law.
If the US supreme court does not take up a same-sex marriage case this year, one possible scenario is that all the federal courts of appeals will make a decision and strike down the laws before the court gets a chance to step in. It could also get picked up by the supreme court in their next term.
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