A series of other states could also see the practice quickly legalized. | AP Photo
The Supreme Court has turned down all seven pending petitions urging the court to decide whether there is a right to same-sex marriage under the U.S. Constitution.
The justices’ action, announced without comment by the court Monday morning, appears to clear the way for same-sex marriages in at least five states in short order. A series of other states could also see the practice quickly legalized under appeals court rulings already handed down.
The justices turned aside petitions challenging appellate decisions that overturned same-sex marriage bans in Indiana, Oklahoma, Utah, Virginia and Wisconsin.
The decision surprised many analysts because the justices had twice stepped in — in Utah and Virginia — to halt same-sex marriages in those states after lower court rulings found gay marriage bans unconstitutional.
Now, those stays will be swept aside, with those decisions likely to kick in within a matter of days.
“I think this is a terrific result, for now,” said Richard Socarides, a gay-rights advocate and former adviser to President Bill Clinton. “It’s a little bit incremental, but I think it’s fantastic result and we should celebrate today.”
Conservatives were puzzled and disappointed by the outcome, since it takes only four justices to grant review of a case and the four most conservative justices last year dissented from the court’s decision striking down the federal Defense of Marriage Act as violating the rights of gays and lesbians.
”The Court’s denial of review in all the pending cases strikes me as grossly irresponsible, as a huge abdication of duty on the part of at least six justices,” Ed Whelan of the Ethics and Public Policy Center wrote on National Review online.
The action was announced shortly before the justices convened Monday morning for the first session of the Supreme Court’s new term.
WASHINGTON — The jockeying among the titans of the Supreme Court bar for a place at the lectern when the justices hear the next same-sex marriage case is as understated as it is unmistakable.
In a half-dozen briefs filed in recent weeks, some of the best lawyers in the nation spent many pages arguing that their case was the right one in which to establish a nationwide right to same-sex marriage. They pointed out the attractive features of their own cases and the shortcomings of others.
In legal jargon, streamlined cases without procedural pitfalls are said to be good vehicles. That made the fancy lawyers sound a little like car salesmen.
The case from Virginia, one brief said, is “an excellent vehicle.” The one from Wisconsin, said another, is “an ideal vehicle.” The one from Utah, perhaps the leading candidate, was said to be, with the swagger of understatement, “an appropriate vehicle.”
“As I would read their briefs,” Mr. Campbell said of his dueling adversaries, “I would write in the margin: ‘that’s an implicit dig at this case’ and ‘that’s a dig at that case.’ ”
Evan Wolfson, the president of Freedom to Marry and one of the architects of the political and legal push for same-sex marriage, said there would be plenty of glory to go around should his side prevail. A victory, after all, he said, would be the culmination of a joint effort that was decades in the making.
“Every attorney in the world, it seems, is now eager to be the one that stands before the court in the freedom to marry case, but what really counts is the compelling collective presentation we will all make, no matter which case it is,” Mr. Wolfson said.
The lawyers challenging the same-sex marriage bans are confident they will win in the Supreme Court, which is why they have all urged the justices to hear their cases even though they had won in the lower courts.
The justices will consider whether to hear one or more of the cases at their first private conference of the new term, on Sept. 29, and they may announce their choice or choices in the following weeks. If they do, they could hear arguments this winter and announce a decision by June.
The arguments for and against same-sex marriage are by now familiar to the justices, who considered but sidestepped them in a case from California last year.
Theodore B. Olson, a former United States solicitor general in the administration of George W. Bush, argued that case for the challengers of the California ban, and he is now one of the lawyers challenging Virginia’s ban. As before, he is joined by David Boies, his adversary in Bush v. Gore, the 2000 decision that delivered the presidency to Mr. Bush.
On the phone the other day, Mr. Olson listed the reasons to pick his case. It includes a class action, he said. It presents not only the issue of the right to marry but also that of whether states must recognize same-sex marriages performed elsewhere.
Virginia, he pointed out, was home not only to several of the giants who wrote the Constitution but also to Mildred and Richard Loving, who successfully challenged the state’s ban on interracial marriage in Loving v. Virginia in 1967.
“It’s pretty potent stuff,” he said of his case’s connection to another civil rights movement.
Mr. Olson was quick to add that the ultimate goal was victory, whatever the vehicle. “We have great respect for the lawyers in the other cases,” he said, “and we would be quite supportive of them if that’s what the justices want to do.”
Mr. Smith told the justices that “the collective experience of counsel” in the two Virginia challenges mattered, as their groups “have litigated every major gay rights case decided by this court” from 1996 on.
Independent observers said a second case, from Utah, is the leading candidate. “Maybe if they want to be neutral they’ll pick Utah just because they were first,” said Roberta A. Kaplan, who successfully argued last year’s challenge to a key provision of the federal Defense of Marriage Act.
The Utah case, Herbert v. Kitchen, No. 14-124, was the first to strike down a state marriage ban after Ms. Kaplan’s victory. It is also much less complicated than the one from Virginia, which features threeseparatepetitions from government officials seeking review of the appeals court’s ruling. One of the petitions, from the state’s attorney general, seeks to have the ban overturned. The others, from court clerks, seek to have it upheld.
There are two sets of plaintiffs, too. Mr. Olson represents two gay couples. Mr. Smith represents a class of gay couples who seek to marry.
By contrast, lawyers in the Utah case told the court, their case has “just one set of plaintiffs and one set of respondents.”
But Mr. Olson’s brief, in Rainey v. Bostic, No. 14-153, said the complications in his case were a virtue, as “all sides of this important issue would be vigorously represented.” The class-action aspect of the case, he added, would mean “there is no risk that this case would become moot — due, for instance, to the unforeseen end of a couple’s relationship — during the pendency of this appeal.”
“The obvious thing about the Utah case is that it is being defended by state officials,” said Shannon P. Minter, a lawyer with the lesbian rights center. “It’s a very clean vehicle.”
Still, he added, “we’re long past the point where it would matter which case or which lawyer.”
Ms. Bonauto agreed. “Our case is an appropriate case,” she said. “All of the cases are appropriate cases.”
The justices will also consider cases from Indiana, Oklahoma and Wisconsin. In the Oklahoma case, the challengers are represented by Jeffrey L. Fisher, a law professor at Stanford who won a unanimous ruling in June requiring the police to get warrants to search the cellphones of people they arrest.
Mr. Fisher devoted 11 of his brief’s 32 pages to showing that his case was the right choice — or at least that it should be in the mix.
His case, Mr. Fisher wrote, presented only the straightforward question of whether Oklahoma must allow same-sex marriages to be performed in the state. “Some of the plaintiffs from the Utah and Virginia cases, by contrast, raise another claim,” he wrote, that of whether states must recognize marriages performed elsewhere.
Mr. Fisher assured the justices that they would receive “full and focused briefing and argument” on the core issue if they picked his case, Smith v. Bishop, No. 14-136.
Mr. Olson drew the opposite conclusion from the same set of facts. Hearing the Virginia case, he told the justices, would “enable the court to resolve all aspects of the marriage-equality question in a single opinion without leaving lingering questions and uncertainty for lower courts, states and the American public.”
On this, at least, the lawyers in the Utah case agreed. “Piecemeal review risks that litigation will drag on for years,” they wrote.
FILE – In this July 31, 2014 file photo is Associate Justice Ruth Bader Ginsburg in her Supreme Court chambers in Washington. Ginsburg discusses the work of the court in an appearance Tuesday, Sept. 16, 2014 at the University of Minnesota Law School. (AP Photo/Cliff Owen, File) The Associated Press
People seeking clues about how soon the Supreme Court might weigh in on states’ gay marriage bans should pay close attention to the 6th Circuit Court of Appeals, Justice Ruth Bader Ginsburg told a Minnesota audience Tuesday.
Ginsburg said cases pending before the circuit covering Kentucky, Michigan, Ohio and Tennessee would probably play a role in the high court’s timing. She said “there will be some urgency” if that appeals court allows same-sex marriage bans to stand. Such a decision would run contrary to a legal trend favoring gay marriage and force the Supreme Court to step in sooner, she predicted.
She said if the appeals panel falls in line with other rulings there is “no need for us to rush.”
Ginsburg didn’t get into the merits of any particular case or any state’s gay marriage ban, but she marveled at the “remarkable” shift in public perception of same-sex marriage that she attributes to gays and lesbians being more open about their relationships. Same-sex couples can legally wed in 19 states and the District of Columbia. Bans that have been overturned in some other states continue to make their way through the courts.
“Having people close to us who say who they are — that made the attitude change in this country,” Ginsburg said at the University of Minnesota Law School.
The Supreme Court returns from a summer recess in early October. Ginsburg wasn’t the only justice on the lecture circuit Tuesday; Justice Clarence Thomas was addressing a gathering in Texas.
Thomas, one of the court’s conservatives, expressed his firm belief in the strict construction of the Constitution during his appearance at the University of Texas at Tyler. As a judge, Thomas said, he’s “not into creative writing,” the Tyler Morning Telegraph reported.
And Thomas said he’s motivated by the belief that if the country “is not perfect, it is perfectible.”
Fifteen months ago, the high court struck down a provision of the federal Defense of Marriage Act that denied a range of tax, health and veterans benefits to legally married gay couples. Rulings invalidating state gay marriage bans followed in quick succession.
Ginsburg spent 90 minutes before an audience of hundreds discussing her two decades on the Supreme Court as well as her days as an American Civil Liberties Union lawyer. In a question-and-answer period, she predicted that cases dealing with the environment and technology would make for watershed decisions in years to come.
Privacy of information carried on smartphones in the context of criminal searches could be particularly big, Ginsburg said. “You can have on that cellphone more than you can pack in a file cabinet,” she said.
The liberal justice said the court is the most collegial place she has worked as she fondly described her close relationship with conservative Justice Antonin Scalia. She made sure to plug a comic opera about the two of them — “Scalia/Ginsburg” — that will debut next year in Virginia.
And the 81-year-old Ginsburg elicited plenty of laughter by highlighting a Tumblr account about her called the “Notorious R.B.G.” and a never-realized dream job.
“If I had any talent God could give me, I would be a great diva,” she said.
Yesterday, on the heels of the Judge Richard Posner’s brilliant pro-marriage equality ruling out of the 7th Circuit Court of Appeals, attorneys general from 32 states — three out of every five states in the country — filed two separate briefs with the U.S. Supreme Court urging the justices to rule on same-sex marriage.
The AP reports:
Fifteen states that allow gay marriage, led by Massachusetts, filed a brief asking the justices to take up three cases from Virginia, Utah and Oklahoma and overturn bans. And 17 other states, led by Colorado, that have banned the practice asked the court to hear cases from Utah and Oklahoma to clear up a “morass” of lawsuits, but didn’t urge the court to rule one way or another.
Massachusetts Attorney General Martha Coakley wrote that the experience of her state — the first to legalize the freedom to marry — proves that marriage equality strengthens the institution of marriage and helps families. Signing on to Massachusetts’s brief were the marriage equality states of California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, New Mexico, New York, Oregon, Pennsylvania, Vermont, and Washington.
Colorado’s brief, which was joined by Alabama, Alaska, Arizona, Georgia, Idaho, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, West Virginia and Wisconsin, says that only the Supreme Court can resolve the question of marriage equality. It also claims, according to the AP, that “without a Supreme Court decision, states defending bans could be liable for huge legal bills from future lawsuits if they are overturned.”