WASHINGTON — The Supreme Court is poised to say whether it will consider legalizing gay marriage amid growing pressure to settle the matter in a new term that could cover some of the nation’s most divisive social issues.
Fifteen months after ducking the question of whether the Constitution gives gay couples the right to wed, the justices may say as soon as Thursday that they will take up one of seven appeals from five states. Advocates on both sides are calling for a high court review against the backdrop of a wave of pro- marriage court rulings over the past year.
“The court might have preferred to put off the issue for another term or two,” said Irv Gornstein, executive director of the Supreme Court Institute at Georgetown Law Center in Washington. “But the pace at which this issue has accelerated will prevent it from doing so.”
The justices also will have a chance to revisit the Affordable Care Act and racial discrimination in the nine-month term that opens next week. Meanwhile, federal appeals courts are priming clashes on abortion and gun rights for an eventual date at the high court.
Same-sex couples can legally wed in 19 states and the District of Columbia. Judges have backed marriage, at least to some degree, in another 16 states, and three federal appeals courts covering 14 states have said gay marriage is a constitutional right.
Advocates on both sides are seeking nationwide closure a decade after Massachusetts became the first gay-marriage state.
“America is ready, and the time is right for the court to do it,” said Evan Wolfson, president and founder of Freedom to Marry, which has led the campaign to legalize same-sex marriage across the country.
The Supreme Court dropped hints of support for gay marriage in June of last year, even while sidestepping the ultimate question. In a 5-4 ruling, the court struck down part of the U.S. Defense of Marriage Act, which had defined marriage as a heterosexual union.
The law “places same-sex couples in an unstable position of being in a second-tier marriage,” Justice Anthony Kennedy wrote for the court. The court’s reasoning led dissenting Justice Antonin Scalia to say that an eventual decision legalizing gay marriage was “inevitable.”
In a separate case decided the same day, the court issued a procedural ruling that let gay marriage begin in California.
Now, the biggest question for the court may be which of the seven pending appeals to take up. The justices were scheduled to discuss those appeals at their private Sept. 29 conference. Arguments would probably be in February or March, with a decision by the end of June.
The most likely candidate may be the oldest pending appeal, filed by Utah Gov. Gary Herbert. He is seeking to revive a voter-approved state constitutional provision that defines marriage as a union between a man and a woman. A federal appeals court said the provision violated the U.S. Constitution.
“A vast cloud covers this entire area of the law, and only this court can lift it,” Herbert, a Republican, said in his Supreme Court appeal.
Federal appeals courts have similarly struck down bans in Virginia, Oklahoma, Wisconsin and Indiana, and each of those cases is now at the Supreme Court. The justices could take up just one case, or they could combine multiple appeals that present the issue in slightly different ways.
A second potential blockbuster issue — President Barack Obama’s health-care law, which the Supreme Court largely upheld in 2012 — could return this term in either of two forms.
One possibility is a sequel to last term’s 5-4 decision letting closely held companies claim a religious exemption from the requirement that employers include contraceptive coverage in worker insurance plans. A federal appeals court in Washington is considering the adequacy of new regulations designed to accommodate the views of nonprofit religious employers.
A second issue poses a more fundamental threat to the law and involves an already pending bid for review. The appeal argues that in most parts of the country, people who buy health insurance through Obamacare marketplaces aren’t eligible for the tax subsidies the law set up to make policies affordable.
The question is whether the subsidies apply only to consumers in the 14 states that set up Obamacare insurance marketplaces or to the larger number that relied on the federal government to build the exchanges. The law says people qualify for aid if they buy insurance on an exchange “established by the state.”
That issue at one point produced a split between two federal appeals courts — a situation that often prompts Supreme Court intervention. One of those courts last month decided to rehear the case, reducing, though not eliminating, the chance of Supreme Court review this term. The court considers a case only if at least four of the nine justices vote to do so.
“There may be four who are eager to get to this question, but I’m not sure there are, especially if they don’t know what the fifth justice will do,” said Marty Lederman, a constitutional law professor at Georgetown Law Center.
The most prominent affirmative action case is one the justices have seen before, a fight over the University of Texas’s use of race-based admissions. A federal appeals court upheld the admissions policy after being told by the Supreme Court to give the program tougher scrutiny.
The white woman challenging the policy is asking a larger panel of judges to reconsider the case. Should that effort fail, the next step would be the Supreme Court, where five Republican- appointed justices have already criticized affirmative action.
In another race case, the court will say as early as tomorrow whether it will take up a pivotal issue affecting discrimination suits under the Fair Housing Act.
Conservative groups are urging the court to require plaintiffs making discrimination claims to show intentional bias. For four decades, civil rights advocates have had to demonstrate only that lenders, insurers or housing agencies acted in ways that had a disparate, or unequal, impact on minorities, without having to prove deliberate discrimination.
The high court hasn’t ruled on abortion rights since 2007, when a 5-4 decision upheld a federal ban on a late-term procedure that opponents call “partial birth” abortion.
A case out of Texas might provide the next confrontation. A New Orleans-based federal appeals court upheld a Texas law that requires abortion doctors to affiliate with a local hospital. Abortion-rights advocates say the measure and similar laws elsewhere are forcing clinics to stop providing abortion services or to close altogether.
The Texas abortion fight is in the hands of larger panel of appellate judges, who are considering a request for a new hearing.
On guns, the high court may get a fresh chance to say whether the Constitution’s Second Amendment protects firearms possession outside the home. The justices have declined to intervene twice in recent years, turning away challenges to New Jersey and New York laws that require a special need to carry a handgun in public.
Now, a case from California has deepened a split among lower courts. A federal appeals court in San Francisco ruled that responsible, law-abiding citizens are entitled to carry a concealed firearm in public for self-defense. Again, a larger panel of judges is weighing a request for a new hearing.
Taken together, the cases add up to a Supreme Court term loaded with far-reaching potential.
“The significance of this term,” Gornstein said, “will depend on how many of these cases on the horizon end up being granted.”
