The new session of the US Supreme Court starts soon with the first meeting of the justices on the 29th of this month and they already have seven petitions on same-sex marriage submitted to them as a result of Appeals Court verdicts. These cases consist of three from Virginia, and one each from Indiana, Oklahoma, Utah, and Wisconsin.

Lyle Denniston explains all the constitutional issues that the court is being asked to judge.

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, either under equal protection or due process guarantees, or both.

Some of the petitions also ask the Court — for the first time — to specify a standard for judging the constitutionality of laws that are challenged in gay rights cases. The Court has had a significant number of rulings, largely in favor of gay rights in recent years, but it has never said just what constitutional test it is using. In the rulings over the past fifteen months in lower federal courts, judges have applied several variations of constitutional tests, from relaxed to rigorous, but always with the same result — nullifying state bans.

Another issue that some petitions want the Court to resolve is whether, in fact, the Justices settled this issue years ago, against same-sex marriages. That was a 1972 summary decision — that is, without briefs and oral argument — in the Minnesota case of Baker v. Nelson. There, the Court dismissed a plea to open marriage to same-sex couples, which it said did not involve a “substantial federal question.”

The Supreme Court has never questioned that decision, but lower courts recently have routinely ruled that more recent Supreme Court rulings on gay rights have made that decision basically a dead letter.
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Those petitions almost certainly will not be the last that the Supreme Court sees in the coming Term. Two other federal appeals courts are poised to rule quite soon, and a third has a case before it but has not yet scheduled a hearing.

The Court, however, need not await the arrival of any other petitions, if it is prepared to take on the controversy itself promptly.

If the Court does grant review of any same-sex marriage cases any time up to the middle of January, a final decision would be expected by next summer.

There is no requirement for the US Supreme Court to take up the issue at all. The fact that the Appeals Courts have all nullified state bans on same-sex marriage in its various forms means that there is no lower court controversy as such that it needs to resolve urgently. But at the same time, the issue is clearly one whose time is ripe and it would be hard for them to duck it.