The state of Utah is asking the Supreme Court to hear an appeal of the 10th Circuit Court of Appeals ruling that upheld a district court ruling that overturned their ban on same-sex marriage as unconstitutional. Lyle Denniston explains the situation:
With the case going to the Justices via such a petition, the Court will have complete discretion whether to review the Tenth Circuit ruling, or pass it up. Utah officials are almost certain to argue that the Court should take up the issue promptly based on the argument that there is now a conflict among federal appeals courts on the constitutionality of such bans.
The Eighth Circuit upheld such a ban, but that was in 2006, seven years before the Supreme Court’s Windsor decision — a ruling that many judges have said changed the legal landscape for review of those state laws. In the Windsor decision, which involved only a federal law, the Court indicated that it was not taking a position at that time on the validity of state laws forbidding same-sex marriages.
On the same day that it issued the Windsor decision, the Court chose not to decide on the merits a plea to revive California’s ban, “Proposition 8.” It did so by ruling that the sponsors of that ballot measure did not have a legal right to pursue an appeal to defend the proposition. As a result of that decision, though, “Proposition 8″ was nullified because a federal trial judge’s ruling against it went into effect, making California the largest state in the nation where same-sex marriage is now permitted…
Another federal appeals court, the U.S. Court of Appeals for the Fourth Circuit, is expected to rule shortly on the constitutionality of Virginia’s ban. That case has been handled in the Fourth Circuit by the legal team of David Boies and Theodore Olson, two high-profile lawyers who had led the court battle against California’s “Proposition 8.” Also involved in the Fourth Circuit case were lawyers for the American Civil Liberties Union and Lambda Legal, a gay rights advocacy group.
The Tenth Circuit may also rule shortly on another same-sex marriage case, involving Oklahoma’s prohibition on such marriages. That case was heard by the same three-judge panel as the Utah case.
I had forgotten about that 8th Circuit ruling from 2008. If the Supreme Court takes the case — and it’s not clear that they will, of course — there will be only one thing that matters: Is Justice Kennedy ready to go all the way to full marriage equality yet? His majority opinion in Windsor last year laid out a crystal clear case that laws against same-sex marriage were a violation of the Equal Protection Clause of the 14th amendment because they were motivated solely by anti-gay bigotry, but he applied that ruling only to federal recognition of same-sex marriages, not state recognition. I think he would like to extend that decision all the way, but wanted to give the states a chance to catch up first and go incrementally. If he thinks two years is enough time for that, there’s little doubt what the ruling will be in this case.
Here’s why they may not agree to hear the case: It takes four votes to grant cert and you’ve got four conservatives firmly against marriage equality and four liberals firmly against it. Which side, if either, is going to feel confident that they’ll get Justice Kennedy on their side? If neither side feels confident of that, they might all vote not to hear the case. That would only delay the inevitable, of course. With almost every state with a ban on same-sex marriage now being challenged in court, eventually the Supreme Court has to rule on the matter.