WASHINGTON — Same-sex marriage is returning to the Supreme Court — quietly, for now, but soon enough with a shout.
The court’s nine justices will meet privately on Monday to consider hundreds of petitions for the upcoming new term. The most anticipated of them would test whether the Constitution encompasses a right of same-sex couples to marry.
“It’s inevitable at this point that the court will recognize marriage equality,” said David Cole, a liberal professor at Georgetown University Law Center. “The question is when.”
In truth, other key questions include who, which, how and how far?
Specifically: Who will argue the cases and, perhaps, reap the glory? Which state bans, in particular, will be the focus? How will the court reason in its final decision, and how far will the decision-making extend?
During their “long conference,” which precedes the Oct. 6 start of the court’s new term, the justices will consider seven petitions involving state bans on same-sex marriage. Lower appellate courts struck down the marriage restrictions in Utah, Virginia, Oklahoma, Indiana and Wisconsin.
While there’s not yet the circuit split that reliably invites Supreme Court action, and a circuit court is still considering bans in Kentucky, Michigan, Ohio and Tennessee, many expect the high court to act.
“You’ve got a chaotic legal situation,” said attorney Michael Carvin, who has argued on behalf of conservative causes before the Supreme Court. “I think they’ll take the case as a fish-or-cut-bait time.”
At least four justices must agree for a petition to be granted, and Justice Ruth Bader Ginsburg, a same-sex marriage supporter, cautioned recently that “there is no rush” yet.
In theory, the justices could announce this week if they will hear the same-sex marriage argument. More likely, they could take several weeks while they get everything lined up.
At least two cases could be selected for back-to-back oral arguments sometime next year. Several issues are in play as the court weighs the different cases.
Virginia, for example, bans same-sex marriages conducted within the state, and prohibits the recognition of same-sex marriages conducted in other states. These two provisions present distinct arguments, making the Virginia case from the 4th U.S. Circuit Court of Appeals legally appealing.
In contrast, Utah Attorney General Sean Reyes is vigorously defending Utah’s same-sex marriage ban, adopted in 2004 as a constitutional amendment approved by 66 percent of voters, giving that case some extra mileage as a vehicle.
If the court wants to streamline the issue further, it could take up the Oklahoma case, which Stanford Law School Professor Jeffrey Fisher notes in a legal brief deals solely with an in-state marriage ban and not with the distinct question of recognizing marriages from other states.
Lower appellate courts have reasoned in different ways to strike down same-sex marriage bans, giving the Supreme Court several possibilities to consider. Though the result might be the same, the long-term legal fallout could differ depending on whether the high court emphasizes a due process fundamental right to marry, an equal protection freedom from discrimination or some other basis.
