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to Section One | to Arts & Entertainment
posted Friday, September 26 2014 - Volume 42 Issue 39
Waiting for SCOTUS: Why no news may be good news
Section One
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Waiting for SCOTUS: Why no news may be good news

by Mike Andrew - SGN Staff Writer

The U.S. Supreme Court passed up its first chance to accept one or more marriages cases for their current term.

The high court listed seven marriage suits from five states as cases that it might possibly accept for hearings. They were discussed at the court's September 29 conference, but none made the initial list of cases that the justices decided to hear. That list was announced October 2.

The court is not required to hear any cases that come to it on appeal from lower courts. Typically, the justices will agree to take cases where there are important legal principles involved, and a Supreme Court decision is required to set a national legal standard.

To date, all but one of the federal district courts that have ruled on same-sex marriage have decided that bans on Gay and Lesbian marriages are unconstitutional. That one, in Louisiana, is currently on appeal before the Fifth U.S. Circuit Court.

All the Circuit Courts that have ruled on marriage have also decided that same-sex couples have a right to marry. Circuit Courts are the intermediate legal stage between the federal district courts and the U.S. Supreme Court.

Absent disagreement on the issue among the Circuit Courts, the Supreme Court justices may see no point in hearing any of the marriage cases.

Justice Ruth Bader Ginsburg said as much last month, when she told a college audience that 'there will be some urgency' for the high court to accept a marriage case only if one of the circuit courts bucks the trend and rules in favor of same-sex marriage bans.

While marriage equality advocates have filed briefs asking the Supreme Court to rule on the marriage issue once and for all, a quick decision by the court may not be the best outcome for Gay and Lesbian couples waiting to be married.

When the Supreme Court struck down DOMA in USA v. Windsor, it relied on the equal protection and due process clauses of the Fifth Amendment to the U.S. Constitution. In that ruling - which, by the way, was a close 5-4 vote - the justices said that the federal government may not define marriage in a way that disadvantages Gay and Lesbian couples, but they left open the possibility that states could define marriage in whatever way they wanted.

In contrast, federal district judges have relied on the Fourteenth Amendment to strike down state bans on same-sex marriage, and to date they have been upheld by the Circuit Courts. The problem, then, is how the Supreme Court will apply the Fourteenth Amendment.

Liberal legal scholars usually maintain that the Fourteenth Amendment 'federalizes' the Bill of Rights. In other words, it says that the states may not restrict rights that the federal government may not restrict. In the case of marriage, their argument would go, if the federal government may not define marriage in a way that disadvantages Gay and Lesbian couples, then neither may the states.

On the other hand, the Supreme Court's conservative justices are known to take a much more restrictive view of the Fourteenth Amendment, and they are not likely to apply it to a marriage case. They may say that the rights of state legislators or of voters to define marriage trump the rights of same-sex couples to marry.

Justice Kennedy, who wrote the pro-Gay decision in Windsor and is usually described as the 'swing vote' on the court, is known to favor a states-rights approach to federal power, and therefore he might well vote to uphold the ability of states to define marriage however they want. After all, he said as much in his Windsor opinion.

That means that if the high court does set a national legal standard on marriage, it might not be a standard that favors the rights of Gay and Lesbian couples in states where legislators or voters have opposed same-sex marriage.

One other consideration may be in the mix as well. The overwhelming majority of federal judges who have ruled on marriage have said that bans on same-sex marriage are unconstitutional. For the Supreme Court to step in and overrule them would lead to huge demoralization on the federal bench.

At the same time, it could lead to a public outcry against the court because a majority of Americans now support marriage equality.

Chief Justice Roberts is known to take the politics of court decisions very seriously, and to try to craft decisions on controversial cases in a way that mitigates damage to the judiciary's reputation. He found a way to uphold the Affordable Care Act, for example, while still rejecting the Obama administration's legal arguments in favor of it.

Under the circumstances, Roberts may be in no great rush to take a marriage case that could fracture the federal courts and risk casting the Supreme Court as a bunch of bigots in the eyes of the public.

The court's next conference is on October 10, after which they will announce a further list of cases that they will hear this term.

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