What's the Supreme forecast?

We've seen a remarkable string of federal court decisions impacting marriage equality in states with anti-equality laws or constitutional amendments.  But for the majority of those cases, there is a stay in place that prevents people from getting married, until the appeals process plays out.  So there are a lot of cases percolating.

To remind you, and for our foreign readers (if there are any), state laws can be challenged in the state court system,which will only consider issues relevant to the state constitution, or in the  federal court system, under federal constitutional law.  For example, in California's case, the state supreme court reluctantly found that under the California Constitution, Prop8 was legal.  A separate suit was then brought in federal court arguing that it was illegal under the US constitution.  That was heard by the district court, and the 9th circuit court of appeal.

That's what finally went to the Supreme Court, where it was overturned on a technicality because the state declined to appeal, and the only  appellants (the opponents of marriage equality) were a private group that lacked standing. Incidentally, that situation has led to equality in Oregon and Pennsylvania, where the state declined to challenge the ruling and private parties were found to lack standing.  (It's worth reminding people that there is no legal obligation to appeal a court decision. )

The Supreme Court doesn't have to hear any case. Typically, one big driver of them choosing to hear a case is if there is a disagreement in the lower courts.  For example, if the 9th circuit finds for marriage equality, while the 6th does not.  That can only be remedied by the SCOTUS. And that may happen, as court-watchers are betting that the case before the more conservative 6th circuit will find against marriage equality.

Of course, regardless, the losing sides in any of these cases can appeal all the way up to the SCOTUS, as long as they have standing. Right now, the Utah case is closest to making a SCOTUS appeal, since they've been through the circuit. The Oklahoma case is also on track.  The Virginia case may also make an appeal.  Each of these is in a different circuit, and each provides a slightly different twist to the question.  From Equality on Trial,

In the Virginia case, the fervor of the ban is unmatched—not only does its ban deny marriage to same-sex couples, but it also seeks to deny them from acquiring any of the rights of marriage through other means, such as civil unions or domestic partnerships. The plaintiffs, two couples, each represent one aspect of the ban’s two-pronged scope: the denial of both in-state marriage licenses as well as out-of state marriage licenses. 

In the Utah case, the defendants’ case relies more heavily on the claim that the state is being deprived of its right to define marriage, “disenfranchising” millions of its voters. Because the Constitution doesn’t define marriage, and the Supreme Court only deems the “right to marry” as a fundamental right, Utah claims that it has been delegated the right to define what “marry” means. The defendants claim that the Tenth Circuit’s ruling undermines democracy, and the federal system. 

In the Oklahoma case, more emphasis is placed by the defendants on the suspect nature of same-sex parenting. They note the uneasiness of young adults who don’t know their biological parents, or are conceived through sperm donation, though arguments from the other side rebut these claims as largely unfounded, while conflict in the social science community over that issue has also provided little evidence for the claim.

But the court doesn't HAVE to take any of those cases, unless it sees a question it must answer.

 If it does decide to take a marriage case next term (which it probably will), it will be able to pick and choose which one.

Lyle Denniston tells us,

With a little more than five weeks until the Justices assemble in their first private Conference, in advance of the new Term starting October 6, it is by no means clear that any same-sex marriage case will be ready for the Justices to consider it on September 29. That depends, in part, on whether the Court will have cases before it one at a time, as each is ready, or in a group., when several are ready. 

The last scheduled day for distributing a case for consideration by the Justices at the September 29 meeting is September 10 — now, just three weeks away. The pending Utah case has a fair prospect of being ready then, but there is reason to doubt at this point that the pending Oklahoma and Virginia cases will be complete. The lawyers involved have said they were working diligently to push matters along, but the clock is against them for action by the Justices at the outset of the new Term. 

There will be plenty of time, though, to get a case before the Court for decision during the new Term. If a case is accepted for review by sometime next January, it is almost certain to be decided before the end of the Term, late next June.

Federal Court finds Oklahoma amendment unconstitutional

First Utah, now....Oklahoma? From the decision: (my emphases)

The Court recognizes that moral disapproval often stems from deeply held religious convictions….However, moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law.

There is no rational link between excluding same-sex couples from marriage and the goals of encouraging “responsible procreation” among the “naturally procreative” and/or steering the “naturally procreative” toward marriage. Civil marriage in Oklahoma does not have any procreative prerequisites. 

If a same-sex couple is capable of having a child with or without a marriage relationship, and the articulated state goal is to reduce children born outside of a marital relationship, the challenged exclusion hinders rather than promotes that goal. 

Same-sex couples are being subjected to a “naturally procreative” requirement to which no other Oklahoma citizens are subjected, including the infertile,the elderly, and those who simply do not wish to ever procreate. Rationality review has a limit, and this well exceeds it 

Exclusion from marriage does not make it more likely that a same-sex couple desiring children, or already raising children together, will change course and marry an opposite-sex partner (thereby providing the“ideal” child-rearing environment). 

Excluding same-sex couples from marriage has done little to keep Oklahoma families together thus far, asOklahoma consistently has one of the highest divorce rates in the country. 

With respect to marriage licenses, the State has already opened the courthouse doors to opposite-sex couples without any moral, procreative, parenting, or fidelity requirements. Exclusion of just one class of citizens from receiving a marriage license based upon the perceived “threat” they pose to the marital institution is, at bottom, an arbitrary exclusion based upon the majority’s disapproval of the defined class. It is also insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships. “‘Preserving the traditional institution of marriage,’”which is the gist of Smith’s final asserted justification, “is just a kinder way of describing the State’s moral disapproval of same-sex couples.”

Equal protection is at the very heart of our legal system and central to our consent to be governed. It is not a scarce commodity to be meted out begrudgingly or in short portions. Therefore, the majority view in Oklahoma must give way to individual constitutional rights. The Bishop couple has been in a loving, committed relationships for many years. They own property together, wish to retire together, wish to make medical decisions for one another, and wish to be recognized as a married couple with all its attendant rights and responsibilities. Part A of the Oklahoma Constitutional Amendment excludes the Bishop couple, and all otherwise eligible same-sex couples, from this privilege without a legally sufficient justification.