Analysis Law and Policy

Same-Sex Marriage Bans Inch Closer to Supreme Court for Review (Updated)

Jessica Mason Pieklo

So far two states, Utah and Oklahoma, have filed petitions asking the Roberts Court to uphold their respective state bans on marriage equality. Elsewhere, attorneys for the State of Virginia filed their petition for review with the Roberts Court on Friday.

UPDATE, August 8, 4:45 p.m.: On Friday, Virginia’s attorney general petitioned the U.S. Supreme Court to review the Bostic v. Rainey decision, which struck down the state’s marriage equality ban.

It’s been a busy summer for marriage equality litigation. Just over a year after the U.S. Supreme Court’s historic rulings in the Defense of Marriage Act and Proposition 8 cases, state after state that had same-sex marriage bans on the books witnessed those laws struck as unconstitutional. That’s despite the fact that last summer’s ruling from the Roberts Court did not address, directly, whether the Constitution protects same-sex marriage rights. That may change.

So far two states, Utah and Oklahoma, have filed petitions asking the Roberts Court to uphold their respective state bans on marriage equality. Attorneys for the State of Virginia are reportedly set to file their petition for review with the Roberts Court on Friday. Meanwhile, the U.S. Court of Appeals for the Sixth Circuit heard arguments in six different cases challenging marriage bans in Michigan, Ohio, Kentucky, and Tennessee. The conservative-leaning federal appeals court is the third federal appeals court so far to consider statewide same-sex marriage bans. Not a single court has yet to rule against marriage equality, including the U.S. Court of Appeals for the Tenth Circuit, which struck both Utah’s and Oklahoma’s marriage equality bans, and the U.S. Court of Appeals for the Fourth Circuit, which struck Virginia’s.

It’s an impressive string of victories and one that makes the arguments before the Sixth Circuit all the more important.

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Of the three-judge panel that heard the cases, two are appointees of President George W. Bush and one of President Bill Clinton. Now, it’s impossible to have a string of undefeated federal court victories, including at the federal courts of appeal, without some conservative judges ruling in favor of marriage equality. So, the fact that two of the Sixth Circuit judges considering the marriage equality cases are conservative-appointees is not itself an indicator that marriage equality is going to lose for the first time in the federal courts.

A marriage equality loss at the Sixth Circuit would all but guarantee the Supreme Court takes up the issue next term. But what about a marriage equality win at the Sixth Circuit? It’s more difficult to make the case that there’s any real controversy that requires the Supreme Court to resolve when the federal courts all agree that same-sex marriage bans are unconstitutional. And if there’s no controversy, there’s nothing for the Roberts Court to resolve. The country will have, effectively, decided on its own.

There is one wrinkle though, because there always is. Prior to the Court’s decision last summer, striking as unconstitutional the federal ban on same-sex marriage, one federal court had upheld a marriage equality ban. In 2006, the Eighth Circuit Court of Appeals upheld Nebraska’s ban on same-sex marriage. It would appear the federal courts don’t totally agree on the issue, which means that if the Roberts Court wants to finish the marriage equality fight, it now has the chance to do so.

The State of Utah wants the Roberts Court to answer whether or not the 14th Amendment prohibits states from defining or recognizing marriage only as the legal union between a man and a woman. As Lyle Denniston over at SCOTUSblog notes, that broad request means that if the Roberts Court grants Utah’s request, it will consider both the question of state power to ban same-sex marriage and state power to refuse to recognize same-sex marriages legally performed elsewhere. So far, post-Windsor, every single federal court agrees the 14th Amendment prohibits states from discriminating against same-sex marriages.

The Court is on its summer recess, with a private conference to consider new cases scheduled for September 29, just before the start of the new term in October. If the Court does take up the request, and there are plenty of reasons to think it will one way or another, it means we would have an opinion by next summer.

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