John M. Becker

BREAKING: Supreme Court Will Consider Marriage Cases This Month

Filed By John M. Becker | September 10, 2014 4:37 PM | comments

Filed in: Marriage Equality, Politics
Tags: gay marriage, Indiana, marriage discrimination, marriage equality, Oklahoma, same-sex marriage, SCOTUS, Supreme Court, Utah, Virginia, Wisconsin

Supreme CourtThe U.S. Supreme Court has formally listed all marriage cases with cert petitions pending -- Utah, Oklahoma, Virginia, Wisconsin, and Indiana -- for consideration on September 29, at its very first conference after coming back from summer recess.

The Wall Street Journal reports:

Mark your calendars: the Supreme Court is scheduled to consider its next steps on gay marriage when the justices meet for the first time since their summer break.

The court on Wednesday listed gay marriage petitions from five states - Indiana, Oklahoma, Utah, Virginia and Wisconsin - for consideration at its Sept. 29 private conference. Officials in those states are asking the court to decide whether state bans on same-sex marriage are constitutional.

The justices use the September meeting to wade through stacks of appeals that pile up during the court's three-month recess. The court at some point after the conference is expected to add several of those cases to its docket for the term that begins Oct. 6. Court watchers are eagerly awaiting word on whether one or more gay marriages cases will be among them.

The court is under no obligation to act right away. It's possible the court could take additional time to mull its options, particularly because of fast-moving developments in other gay-marriage litigation.

Kathleen Perrin, the legal eagle behind Equality Case Files, adds: "While this is an encouraging move, if the Court follows the pattern it followed last term, no case will be granted cert without being relisted at least once... For comparison, the Prop 8 case was distributed to four conferences and Windsor to three before the Court granted cert in those cases."

Indeed, the AP reports that the justices could put off deciding to take up a case until as late as January and still be able to hear arguments and issue a decision by the end of June.

As a refresher, the Court granted cert (agreed to hear) Windsor and Perry, the DOMA and Prop 8 cases, on December 7, 2012. Oral arguments in Perry were heard on March 26, 2013 and Windsor was heard the following day. Both cases were decided on June 26, 2013.

Whether or not the justices decide to immediately grant cert or put it off until later in the year, this is an exciting development. Hold on to your hats, folks!

UPDATE: Here's additional analysis from Lyle Denniston over at SCOTUSblog:

Seven petitions -- three from Virginia, and one each from Indiana, Oklahoma, Utah, and Wisconsin -- will be submitted to the Justices at that session. There is, of course, no certainty that they will act on any or all of them at that point, but the option is there. With all sides agreeing that the time to rule is now, it would be a surprise if the Court opted to bypass the issue altogether in its new Term.

In order of their filing at the Court, these are the cases: Herbert v. Kitchen (Utah), Smith v. Bishop (Oklahoma), Rainey v. Bostic (Virginia), Schaefer v. Bostic (Virginia), McQuigg v. Bostic (Virginia), Bogan v. Baskin (Indiana), and Walker v. Wolf (Wisconsin).

Together, the petitions raise two constitutional questions: do states have power to refuse to allow same-sex couples to marry, and do states have power to refuse to recognize same-sex marriages performed in other states. In all of the federal appeals courts' decisions being challenged in these cases, state marriage bans of one or both of those kinds were struck down under the federal Constitution.

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