The U.S. Supreme Court is scheduled on Friday to decide whether to take up same-sex marriage — a move that could end more than two decades of litigation.
Proponents of marriage equality have appealed several similar cases in which a three-judge panel at the 6th Circuit Court of Appeals ruled in November against forcing four states — Michigan, Indiana, Kentucky and Ohio — to permit gays and lesbians to wed. Those are four of the 14 states left in the U.S. that do not yet recognize same-sex marriages.
The Supreme Court refused in October to take up the matter when it was opponents of gay marriage who were attempting to appeal a series of rulings that found same-sex marriage a right guaranteed by the U.S. Constitution. While the court did not officially explain why it chose not to intervene, Justice Ruth Bader Ginsburg said in a September interview that there was “no need for us to rush” because every circuit court to rule on the issue up until then had gone the same way, in favor of same-sex marriage.
That winning streak for gay marriage proponents ended in November, putting the 6th Circuit at odds with the four other circuits.
Supporters and opponents of same-sex marriage say the Supreme Court must and will settle the question nationwide, but it’s unclear whether that will happen during the 2015 term, which ends in June, or the next one.
“Everybody knows this thing is going to be decided by the Supreme Court,” said former Chapman University Law School Dean John Eastman, a constitutional law scholar and chairman of the National Organization for Marriage. “It would be very weird” if the high court didn’t.
The court’s options include accepting one or more of the cases appealed before them on Friday, deferring the decision for days or weeks or outright rejecting the appeals.
A decision by the court to take up the matter could be announced by midday Friday, and if so, oral arguments would be likely in coming months, with a decision expected by June.
Not addressing the appeals is seen as the least likely possibility because it would mean that the court is allowing opposing interpretations of the law to stand in different states.
That’s an untenable situation, said Gina Calcagno, the manager of Michigan for Marriage, the Wolverine State’s main pro-gay-marriage group. More than 320 same-sex couples married in Michigan in March during a brief period after a federal judge struck down the state’s ban and before the 6th Circuit froze that decision pending appeal, so any delays keep those couples and the state uncertain of their legal status.
“We have thousands of couples not just in Michigan but across the nation who are in limbo,” Calcagno said. “We shouldn’t have to worry about whether our marriages end when we cross state lines. The sooner the Supreme Court rules on this issue, the sooner we’ll have an answer.”
Eastman said he feels a bit less urgency because he sees benefits for his side to some delay. Also on Friday, the 5th Circuit Court of Appeals in New Orleans hears oral arguments in marriage lawsuits from Texas, Louisiana and Mississippi. Eastman said he believes the more conservative composition of the three-judge panel selected to hear those cases could produce another circuit-level defeat for gay-marriage advocates. That would make the 6th Circuit decision seem like less of an outlier, he said, and would give his side a chance to get into the court record some new research that he said shows harm to children raised by same-sex couples.
“There are several of us who have been urging the defenders of state [traditional] marriage laws to go a little bit slower,” he said. “It’s important to get a decision out of the 5th Circuit first. If the Supreme Court waits even a couple of weeks, they probably won’t hear the cases until the fall.”
Despite the fact that more than half of the nation now lives in states with marriage equality for gay couples, Eastman insisted he believes that this is a genie that can be put back in the bottle.
“The fact that you’ve had a temporary redefinition of marriage is unfortunate, but it would not play out long term if you went back the other way,” he said. “You wouldn’t even need to invalidate the marriage licenses that were given out. You could just have this little bubble of same-sex marriages that works its way through until you restore the institution to its proper definition.”
Calcagno is doubtful, particularly since public opinion has swung dramatically in favor of same-sex marriage rights in recent years. In fact, she said, her job is to push to the fore prominent Republicans and conservatives who have changed their minds, a list that she said includes two state House speakers pivotal in creating the marriage ban in 2004.
“There’s broad public support for marriage equality in Michigan,” she said, citing recent polling. “I don’t see that changing, regardless of what the Supreme Court does.”