The unexpected decision by the U.S. Supreme Court to refuse to consider rulings favorable to marriage equality from three separate circuit courts has shaken up the timeline for an expected resolution of the issue, but legal observers still predict a nationwide answer by the end of 2015.
Before last week, the assumption was the Supreme Court would take a lawsuit seeking marriage equality to deliver a decision binding on all 50 states by the middle of next year. Now, although the sense of timing is just about the same or just slightly longer, observers say the same goal can be achieved after a series of circuit court rulings in favor of marriage equality.
James Esseks, director of the American Civil Liberties Union’s LGBT Project, envisioned the possibility of each of the outstanding circuit courts without marriage equality — the Fifth, Sixth, Eighth and Eleventh — ruling unanimously in favor of gay nuptials by fall 2015.
“And if that happens, I don’t think the Supreme Court takes the issue, I think they just let all the circuit courts fall in line, and then we’ve got a national rule that’s just kind of a whole series of decisions,” Esseks said.
Marc Solomon, author of “Winning Marriage” and national campaign director for the LGBT group Freedom to Marry, said he remains hopeful nationwide marriage equality will happen in 2015 regardless of whether or not the Supreme Court rules.
“Obviously, the court rejected those five states’ petitions, but there very well could be others this year out of the Sixth Circuit potentially … and get to us to a national resolution,” Solomon said. “If that doesn’t happen, I still think 2015 is a possibility.”
It’s been said the Fifth, Eighth and Eleventh Circuits were too conservative for a positive outcome for supporters of same-sex marriage — and possibly the Sixth, where U.S. Circuit Judge Jeffrey Sutton was seen as a deciding vote on a three-judge panel that is considering the issue. But legal experts say the denial of certiorari in marriage cases may make conservative judges reconsider upholding bans on same-sex marriage.
Richard Socarides, a former adviser to President Clinton who writes about gay rights for The New Yorker, said a circuit court ruling in favor of bans on same-sex marriage is hard to imagine in light of actions from the Supreme Court.
“Circuit courts don’t like to be overturned by the Supreme Court; they don’t like to cause problems,” Socarides said. “My suspicion is there will be at this point no circuit court willing to rule against marriage equality, and that we will get to 45 states very quickly — probably within 12 months, definitely within 18 months.”
The last few states will take a while longer, Socarides added, but he predicted “two years, three years, maybe four years, not 10 years” for all 50 states to comply.
The perception that chances are now better in more conservative circuits for rulings favorable to marriage equality would be consistent with the announcement last week from the LGBT group Lambda Legal that it’s joining as co-counsel to plaintiff same-sex couples in a Louisiana lawsuit. The group announced it would join the case, which is pending before the Fifth Circuit, the day after the orders came down from the Supreme Court indicating its denial of certiorari in the marriage cases.
With a renewed focus on rulings by the circuit courts, Solomon said the work of making the case that same-sex couples are harmed by the lack of access to marriage has become all the more important.
“And the other thing I think we all need to be pointing to is how smoothly things have gone in the states where marriages have taken place in some very conservative states like Utah and Oklahoma,” Solomon said. “So the predictions of serious backlash and protests, etc., just haven’t materialized, and that’s because they won’t materialize.”
Work along those lines has already taken place in states that recently gained marriage equality, Solomon said, but his organization is “recalibrating for the final stretch” to hone in on the outstanding states like Texas and Louisiana.
Still, in the event an appeals court decides to uphold a ban on same-sex marriage, there’s widespread belief the split would lead justices to take up the case to reverse the ruling and make a nationwide decision on marriage for themselves.
It takes a vote of four justices to grant certiorari (or decide to take up a case), which would likely be present on the nine-member bench to hear an adverse decision for marriage-equality supporters given the actions by justices last week.
The probable candidate for the next circuit court to rule is the Sixth, which heard oral arguments in August on cases challenging marriage bans in Michigan, Ohio, Kentucky and Tennessee and where a decision is expected imminently. Next up is the Fifth, where appeals of decisions on marriage in Texas and Louisiana are being considered and will likely be argued in November, December or January.
But that’s likely the cut-off point if a circuit court was going to make a decision in favor of a marriage ban in time for a nationwide decision by the Supreme Court in the middle of next year.
Conferences where justices will consider whether or not to take up a case are scheduled only until mid-January for any given term, and from that time it takes about the end of a term to fully brief a case, so any petition for certiorari after that would come too late.
That’s probably what would happen for the ruling from the Eleventh Circuit, where an appeal of a decision against Florida’s marriage ban won’t likely be heard until January, February or March. The same holds true for the Eighth Circuit, which is likely the last circuit to decide on marriage because no district court has ruled yet in that jurisdiction.
If it takes this long to get a decision upholding marriage bans, supporters of gay nuptials will likely have to wait until the Supreme Court’s term next year for the cases to be docketed for a decision in favor of same-sex marriage by summer 2016.
Another possible, but unlikely, scenario for a delay could be the result of a Sixth Circuit decision upholding bans on same-sex marriage. That would make for the first time available to the Supreme Court two cases — one from Ohio, the other Tennessee — that are seeking not outright marriage equality, but recognition of out-of-state same-sex marriages within a particular state.
Under this scenario, the court could take up only the issue of marriage recognition for the current term, then leave the decision of the right of same-sex couples to marry until a decision in 2016.
Esseks said, however, the Supreme Court is unlikely to take up recognition first, the right to marry second, given the current situation in which through their orders, marriage equality came to 16 new states.
“Having issued orders that had that result, it would seem strange to me that the court would then decide to take a small piece of the legal question that’s outstanding — that is, the recognition — and just take that as a prelude to doing the marriage piece,” Esseks said.
While at one time LGBT advocates insisted that a ruling from the Supreme Court to establish a nationwide right to same-sex marriage was necessary, that view seems to have softened in the aftermath of the denial of certiorari.
Solomon said “in so many respects, it just doesn’t matter” whether or not the Supreme Court steps in because either way same-sex couples have won the right to marry.
“We would like to see a Supreme Court ruling in 2015, and we have more information now,” Solomon said. “We know that the Supreme Court might not in spite of what we want, and so, our job is to create the climate in the court of public opinion that will enable the job to finish as quickly as possible. Whether that happens through a final Supreme Court ruling, or it happens through a decision in the circuits, that truly is beyond our control.”
But the lack of a ruling from the Supreme Court would mean the nation’s highest court would never issue an extensive legal rationale spelling out the right of same-sex couples to have equal access to the same institution of relationship recognition as opposite-sex couples.
Nonetheless, as Esseks observed, a detailed nationwide ruling in favor of marriage equality complete with legal analysis may have already occurred last year in the form of U.S. Associate Justice Anthony Kennedy’s decision against the Defense of Marriage Act in Windsor v. United States.
“If we end up with a series of circuit court rulings on marriage and people want to know what the legal principles that govern the freedom to marry in the view of the Supreme Court, I think you can look back at Windsor,” Esseks said. “The Windsor decision clearly focuses on how the Constitution protects the equal dignity of Constitution requires the freedom to marry for same-sex couples throughout the country.”