September 3, 2014 at 6:08 pm EDT | by Chris Johnson
Which marriage case will the Supreme Court take?
Supreme Court, gay news, Washington Blade

The Supreme Court will have many marriage-equality cases when it begins its fall term. (Washington Blade file photo by Michael Key)

The U.S. Supreme Court isn’t expected to issue a ruling on marriage equality until the middle of next year, but potential cases are already stacked up for justices to select when they begin their new term this fall.

A total of nine petitions from opposing sides in three lawsuits seeking marriage equality — in Utah, Oklahoma and Virginia — have been submitted to the Supreme Court following rulings in those cases from federal appeals courts.

Justices are under no obligation to take up any of the cases, but most observers believe the court will elect to take up a case to place its imprimatur on an issue with nationwide importance such as the constitutional right of same-sex couples to marry.

It takes a vote of four justices to grant a writ of certiorari (or decision to take up a case). The court could grant a writ of certiorari on Sept. 29 during the first conference of its upcoming term, or make a decision at a subsequent conference.

Jon Davidson, legal director of Lambda Legal, said it’s hard to say whether the court will take up a case at its initial conference or wait until a later meeting, but the DOMA lawsuits previously before the court may serve as an indication.

“In the multiple challenges to Section 3 of DOMA, and in the multiple challenges to the Affordable Care Act, cert petitions in some cases sat for quite a while, repeatedly being rescheduled for possible consideration at later conferences, before the court announced its action on the cert petitions that had been filed,” Davidson said.

Davidson said it’s even possible for justices to hold on to cert petitions until the succeeding term, although that happens relatively infrequently.

But it remains to be seen which case the Supreme Court will choose, or if the court will decide it’s necessary to take up some combination of the cases.

Each of the teams supporting plaintiff same-sex couples in the Utah, Oklahoma and Virginia lawsuits are boasting heavy hitters. Whoever is behind the prevailing lawsuit will get credit for being part of the most significant gay rights case in history.

• In the Virginia case, known as Bostic v. Rainey, the plaintiff same-sex couples are represented on behalf of the American Foundation for Equal Rights by Ted Olson and David Boies, the legal dream duo that restored marriage equality to California after passage of Proposition 8. Respondents in the case who filed a class-action suit are represented by the American Civil Liberties Union, Lambda Legal and Paul Smith of Jenner & Block LLP, who successfully argued Lawrence v. Texas.

• In the Utah case, known as Kitchen v. Herbert, the Salt Lake City-based legal firm of Magleby & Greenwood P.C., was joined by the National Center for Lesbian Rights as co-co-counsel. Other attorneys who joined later are former acting U.S. Solicitor General Neal Katyal with the law firm of Hogan Lovells and Mary Bonauto for Gay & Lesbian Advocates & Defenders, who successfully argued the Goodridge case that brought marriage equality to Massachusetts.

• In the Oklahoma case, Jeffrey L. Fisher, co-director of the Supreme Court Litigation Clinic at Stanford University, has agreed to become lead counsel alongside Holladay & Chillton PLLC.

If the tally of petitions for a case are any indication of which lawsuit justices will choose, the Virginia case would win hands down. No fewer than five petitions were filed in that lawsuit asking the Supreme Court to take up the case.

Adam Romero, federal legal director for the Williams Institute at the University of California, Los Angeles, said the sheer number of petitions shouldn’t influence justices to take up a case.

“I do not think the additional petitions for review in the Virginia case will make it significantly more attractive to the court,” Romero said. “More important to the court, I expect, will be differences between the legal questions in each of the cases, as well as any potential red flags.”

Each of the three pending cases before the Supreme Court have minor differences that may be distinct enough to influence the justices’ decision on which case to take up. As Buzzfeed’s Chris Geidner notes, lawyers in their petitions before the court drew on these differences as potential deficiencies for why other cases wouldn’t be the best vehicle for a nationwide ruling on same-sex marriage.

One issue that may complicate the Oklahoma case is the naming of the Tulsa County Court Clerk Sally Howe as a defendant in the marriage-recognition portion of the lawsuit, even though she has nothing to do with marriage recognition in Oklahoma.

The U.S. Tenth Circuit of Appeals determined Howe wasn’t the appropriate defendant for recognition of out-of-state marriages. However, the couple that was denied a marriage license by the Tulsa clerk had standing to sue, which led the court to overturn the state marriage ban.

Some observers have speculated the Supreme Court may not want to select the Virginia case because of the standing issues created by the decision from Gov. Terry McAuliffe and Virginia Attorney General Mark Herring not to defend the marriage ban in court.

A ruling based on standing grounds would likely once again mean, much like the Supreme Court’s decision in the Prop 8 case, a ruling bringing marriage equality to one state, but one that doesn’t address the constitutionality of bans in other states.

The Williams Institute’s Romero said these kinds of complications could prevent the court from taking on a particular lawsuit.

“The Supreme Court will think twice before selecting a case with potential roadblocks to the main event, especially because several cases are already on the court’s menu and more are expected,” Romero said.

The petitions already before justices may be joined by others in the aftermath of decisions from the U.S. Sixth Circuit Court of Appeals on marriage bans in Michigan, Ohio, Tennessee and Kentucky and the U.S. Seventh Circuit of Court of Appeals on marriage bans in Wisconsin and Indiana. The U.S. Ninth Circuit Court of Appeals will also be poised to make a decision on laws in Idaho and Nevada after it hears oral arguments on Sept. 8.

If attorneys appeal those decisions, many more cases would be available for the Supreme Court to take up.

And that doesn’t count the Texas case that has been appealed to the U.S. Fifth Circuit Court of Appeals (where the most recent ruling upholding Louisiana’s ban on same-sex marriage would be appealed), or the Florida case on its way to the U.S. Eleventh Circuit Court of Appeals. Oral arguments in the cases aren’t yet scheduled, but that could change soon.

Doug NeJaime, a law professor at University of California, Irvine, predicted the Supreme Court would likely have more petitions from which to select by the time it selects a case.

“I think the court will likely have more cert petitions by the time it decides which, if any, cases to take,” NeJaime said. “I don’t think the first cases necessarily have any greater likelihood, and the court can also grant cert in more than one case. I think we will see decisions from other circuits relatively soon, so cert petitions will likely be filed not long after that.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

1 Comment
  • One factor that may lead the Supreme Court to choose the Virginia same-sex marriage case is, obviously, historical precedent: It was Virginia’s ban on interracial marriage that the justices took up in the fall of 1966 and unanimously struck down in June 1967 (Loving v. Virginia).

    The fact that the plaintiffs in the Virginia case are represented by the same legal “dream team” that challenged California’s Proposition 8 — Ted Olson and David Boies, both of whom are experienced litigators before the high court — is sure to also factor into the justices’
    decision on whether to take up the case or not.

    On the other hand, given the court’s 5-4 majority in the Defense of Marriage Act and Prop. 8 cases — with libertarian conservative Justice Anthony Kennedy providing not only the critical fifth vote but also writing the majority opinion in both cases — it’s hard for me to imagine the court ruling in favor of opponents of marriage equality.

    Especially given the high court’s 6-3 rulings against Colorado’s Amendment 2 in 1996 (Romer v. Evans) and the last remaining anti-sodomy laws in 2003 (Lawrence v. Texas) — again with Kennedy writing the majority opinion — I just can’t see how opponents of marriage equality can possibly change any of the justices’ minds on this issue.

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