WASHINGTON, DC – Friday could be the biggest day ever for gay marriage in the United States.
This morning, the nine justices of the U.S. Supreme Court will huddle in private conference to consider petitions before them, including a number of same-sex marriage cases that could determine, for once and forever, whether marriage rights will become legal for all Americans.
Currently, 36 states and the District of Columbia permit same-sex marriage, so the tipping point has already arrived and public support for marriage equality is firmly in the majority, and rising daily. The pressure mounts for the justices to serve up justice and banish discrimination.
The high court could choose to review one case, several cases, all the cases or none of them, but the betting line is that they will finally weigh in on the issue and render that decision by the end of June. All signs point to the high court finally rendering the decision it sidestepped in the United States v. Windsor case, the decision announced on June 26, 2013.
“70% of Americans now live in a state with marriage equality, and that number was considerably lower the last time these justices considered whether to take up a marriage case,” said Charles Joughin, a spokesman with the Human Rights Campaign.
Earlier this week, gay marriage began in Florida, the nation’s third most populous state behind California and Texas. This means that gay marriage bans only exist in 14 states -- North Dakota, South Dakota, Nebraska, Missouri, Arkansas, Louisiana, Texas, Mississippi, Alabama, Tennessee, Kentucky, Ohio and Michigan – though those bans are under legal attack and some of them already struck down but under appeal.
So the scene is perfectly set for the Supreme Court to take up the issue. The high court could announce later today, but more likely on Monday, Jan. 12, whether any of the marriage cases will be heard. If the high court gets involved -- and supporters and foes alike urge the justices to take up the issue -- then the justices could render a ruling before the current session ends in June.
Also today, the Fifth Circuit Court of Appeals based in New Orleans, Louisiana will hear three gay marriage cases that were appealed following district court rulings. In two of the cases, involving Mississippi and Texas, judges ruled that state bans on same-sex marriage were unconstitutional. And in the third case, the federal judge ruled that Louisiana’s ban on gay marriage was constitutional.
The Fifth Circuit historically has been among the most controversial and conservative appellate courts in the land. The three-judge panel hearing the three cases today comprises two appointees made by President Ronald Reagan and one made by President Barack Obama, meaning that gay-marriage advocates will have to persuade two judges that marriage is a right for LGBT Americans.
Any decision by the Fifth Circuit could be months in the making, and the court could postpone its decision indefinitely if the Supreme Court decides to take up the issue. Nola.com and Reuters have handy roundups of what might happen in the Fifth Circuit.
Cases before the U.S. Supreme Court
The focus appears to fall on the cases coming out of the Sixth Circuit Court of Appeals, where a three-judge panel voted 2-1 to uphold gay marriage bans in Michigan, Ohio, Kentucky and Tennessee.
Maureen Johnston of SCOTUSblog sums up those cases:
Robicheaux v. George
Issue: Whether a state’s constitutional and statutory bans denying same-sex couples the freedom to marry and recognition of their marriages validly entered in other jurisdictions violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution.
Bourke v. Beshear
Issue: (1) Whether a state violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment by prohibiting gay men and lesbians from marrying an individual of the same sex; and (2) whether a state violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment by refusing to recognize legal marriages between individuals of the same sex performed in other jurisdictions.
DeBoer v. Snyder
Issue: Whether a state violates the Fourteenth Amendment to the U.S. Constitution by denying same-sex couples the right to marry.
Tanco v. Haslam
Issue: (1) Whether a state violates the Due Process or Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution by depriving same-sex couples of the fundamental right to marry, including recognition of their lawful, out-of-state marriages; (2) whether a state impermissibly infringes upon same-sex couples’ fundamental right to interstate travel by refusing to recognize their lawful out-of-state marriages; and (3) whether this Court’s summary dismissal in Baker v. Nelson is binding precedent as to petitioners’ constitutional claims.
Obergefell v. Hodges
Issue: (1) Whether Ohio’s constitutional and statutory bans on recognition of marriages of same-sex couples validly entered in other jurisdictions violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution; and (2) whether Ohio’s refusal to recognize a judgment of adoption of an Ohio-born child issued to a same-sex couple by the courts of a sister state violates the Full Faith and Credit Clause of the U.S. Constitution.
The divided Sixth Circuit has the distinction, in American history, of being the first appellate court to uphold the discriminatory ban on gay marriage.
This perked the interest of the Supreme Court, because it was the first time marriage-equality supporters lost after a long string of victories including at the Fourth, Seventh, Ninth and Tenth Circuit Court of Appeals.
The Sixth Circuit ruling also seemed to encourage opponents of gay marriage in Idaho, North Carolina and South Carolina, where anti-gay state leaders have asked the high court to reconsider rulings that brought same-sex marriage to those states. At the same time, Lambda Legal boldly asked the high court to leap-frog the Fifth Circuit review of the Louisiana case, which it lost.
In reading the tea leaves, the high court appears to have two justices who consistently signal that they oppose gay marriage: Antonin Scalia and Clarence Thomas. The other conservative, Justice Samuel A. Alito, likely leans against marriage equality. They would be at odds with Justices Stephen G. Breyer, Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg. That leaves Chief Justice John G. Roberts and Justice Anthony Kennedy as the crucial swing votes, and many legal experts believe that they will decide for marriage equality.
At Friday’s private conference, it will take four justices to agree to accept any case before the high court..
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Ken Williams is Editor in Chief of SDGLN. He can be reached at email@example.com, @KenSanDiego on Twitter, or by calling toll-free to 888-442-9639, ext. 713.