On Monday, Sept. 29, the Supreme Court will consider seven cases challenging state-level gay marriage bans: three from Virginia, and one each from Oklahoma, Utah, Indiana, and Wisconsin. The court could decide to hear every case, or none at all—or it could pick a single one to review. Each case would come with its own procedural hitches and substantive flaws; if the court picks the wrong case, it may wind up waiting another year before settling the marriage question once and for all. Below, we’ve outlined all the perks and flaws of the current batch of cases. These contenders are competing to make civil-rights immortality.
Ted Olson and David Boies, two attorneys representing the Virginia plaintiffs, argued in Hollingsworth v. Perry that California’s gay marriage ban—and every gay marriage ban in the country—was unconstitutional. The Supreme Court held that backers of California’s ban didn’t have standing in court, thereby restoring gay marriage to California. So Olson and Boies kind of won. They both argued Bush v. Gore—Olson for Bush, Boies for Gore. One won. All in all, that’s not a bad record.
Another attorney representing another group of plaintiffs is Paul Smith, who argued Lawrence v. Texas in 2003, which decriminalized sodomy. He won. He also clerked for Lewis Powell, the swing vote on an earlier case that had upheld sodomy bans as constitutional. So, symmetry. As Smith notes in his brief, “the collective experience of counsel” means these groups “have litigated every major gay rights case decided by this court” from 1996 on.
Virginia is the state that once prosecuted Mildred and Richard Loving for violating the state’s anti-miscegenation ban. The Supreme Court invalidated that ban in 1967’s Loving v. Virginia—one of the most important civil liberties rulings in modern history.
If the court decides it wants to take the most complicated case, with the most plaintiffs, raising the most issues, this is the vehicle. The Virginia cases give the Supreme Court the ability “to address both outright bans on same-sex marriage and bans on the mere recognition of out-of-state marriages,” according to a petition from the Olson and Boies team. In other words it raises both issues if the court wants to tackle them. The plaintiffs include a class of people seeking to enter into same-sex marriages, plus two other couples in a separate suit. Also, the ban arose from “both legislatively adopted statutes and a popularly enacted constitutional amendment” (our emphasis).
On the con side, Virginia’s cases may be just too complicated. As lawyers in the Utah case wrote in that state’s brief, their appeal has “just one set of plaintiffs and one set of respondents.”
Who is defending the ban?
There are legitimate opponents to same-sex marriage here, so there is no problem of ghost-litigants, as arose in the Proposition 8 case. (There, the state refused to back the ban in court, leaving the task up to a zealous group of Prop 8 supporters. The justices held that these supporters had no standing to defend a referendum in court.) Also, the plaintiff class is big enough that there is no risk that this case would become moot if, for instance, a couple broke up.
Working against Virginia, however, is the fact that Attorney General Mark Herring has refused to defend the ban. Other attorneys general are vigorously defending their states’ bans, and the court may prefer to hear a case that more clearly pits the state against the plaintiffs. For instance, state officials are fervently defending the ban in the Utah case. Also, Herring’s pro-gay position means that one of the three petitions from the commonwealth of Virginia opposes the ban—which is confusing, to say the least.
The vast scope of the Virginia case is either a plus or a minus for Virginia. On the one hand, it’s sweeping, as the brief explains “it involves both individual plaintiffs suing in their own right and a class of gay and lesbian Virginians.” That gives the court a clear shot at a strong, sweeping decision. On the other hand, if the justices take the case, there will be no room for baby steps or cop-outs.
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Thousands of gay couples are raising children in the state, a fact that clearly influenced Judge Richard Posner’s decision to strike down the ban. By denying gay parents marriage licenses, Indiana harms the psychological and economic well-being of their children. That’s a compelling argument against gay marriage bans—one that seems to weigh on Justice Anthony Kennedy.
Indiana—like many other states—claims that it forbids gay people from marrying because marriage is designed exclusively to promote procreation. Yet Indiana permits first cousins over the age of 65 to marry, for the explicit reason that they can’t procreate. (The state also lets sterile people marry.) This inconsistency reveals the procreation argument to be a hollow, ad hoc farce, not a legitimate state interest.
The plaintiffs are asking the court to knock out both Indiana’s ban on performing same-sex marriages and its refusal to recognize such marriages performed elsewhere. They’re asking the court to go big, which could be tempting for the justices who just want to get the damn thing over with already.
However, as the court’s punt in the Prop 8 case illustrates, several of the justices favor an incremental approach to expanding gay rights. The breadth of this case might scare them away.
Who is defending the ban?
Both the conservative state attorney general and local county clerks who refuse to recognize gay marriage. And they aren’t giving up.
Judge Posner’s opinion striking down Indiana and Wisconsin’s gay marriage bans was an instant classic: a witty, moral, full-throated takedown of the state’s anti-gay sophistry. Posner’s forthright logic—as well as his conservative credentials—may appeal to a certain swing voter on the high court.
Working against Indiana, Posner and Scalia are engaged in a very public feud, and their bad blood might make the case too hot for the justices to handle. Posner also ruled solely on equal protection grounds, ignoring the plaintiffs’ argument that marriage is a “liberty” protected by the due process clause of the 14th Amendment. Justice Kennedy is something of a liberty fetishist, so he might prefer a case that turns on that concept.
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As with Indiana, thousands of gay couples are already raising children in Wisconsin, meaning the state’s gay marriage ban is actively harming children who want to see their parents married.
Gay couples in Wisconsin rushed to get married after the state’s marriage ban was first struck down. When an appeals court eventually stayed that ruling, these maybe-married couples were trapped in legal limbo. That conundrum gives the high court a compelling reason to take the case and resolve it as soon as possible. (The same problem has arisen in Utah and Indiana.)
However, the justices might be more irritated by lower courts for refusing to stay their rulings than they are empathetic toward the gay couples who married straightaway. A cynic might even say that lower-court judges intentionally created an artificial urgency to force the high court to resolve the matter swiftly.
The plaintiffs want Wisconsin to recognize gay marriages performed both in-state and out-of-state. If the justices want a broad ruling, this would make a perfect vehicle.
But as with Indiana, there’s no baby step to be taken here: The justices must either go big or go home.
Who is defending the ban?
Both the state attorney general and the state registrar. The state AG is so vehemently anti-gay that he threatened to prosecute any county clerks who issued marriage licenses to gay couples.
The Wisconsin plaintiffs present the equal protection question and the due process “liberty” question as separate and discrete. In other words, the plaintiffs are arguing that the court could strike down their state’s gay marriage ban on two different theories: the notion that the ban literally denies them “equal protection of the laws,” or the notion that the “liberty” protected by the due process clause encompasses the fundamental right to marry. If the justices want to rule on one or the other—for instance, if Justice Kennedy wants to focus on the “liberty” to marry rather than the granular details of anti-gay discrimination—this case would permit it.
Working against this case, Judge Posner struck down Wisconsin and Indiana’s bans simultaneously, so the same caveats apply to both states. Further, Posner was especially brutal to Wisconsin’s anti-gay arguments at trial, perhaps to the point of judicial impertinence. His harsh dismissal of the state’s case might provoke counterproductive sympathy among the justices.
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As with Indiana and Wisconsin, Utah witnessed a flood of same-sex marriages after U.S. District Judge Richard Shelby struck down its gay marriage ban and refused to stay his decision. Eventually, the Supreme Court stayed it for him—and Utah refused to recognize any gay marriages performed in the state, leaving about 1,000 gay couples in legal limbo.
The 10th Circuit affirmed Judge Shelby’s decision striking down the marriage ban as a violation of both equal protection and due process. To the two-justice majority, the constitutional question seemed almost obvious.
The plaintiffs want Utah to recognize every gay marriage, whether it was performed in the state or elsewhere.
Again, though, the court would have no way of ducking the ultimate question of a constitutional right to same-sex marriage.
Who is defending the ban?
Utah’s governor and attorney general, who really don’t like gay people and have vowed to fight for their case all the way to the top.
Judge Shelby was one of the first judges to strike down a state-level marriage ban on the basis of United States v. Windsor. His powerful opinion was built largely upon the logic of that case itself, which could flatter Justice Kennedy’s ego while appealing to his intellect.
On the other hand, Shelby essentially trolled Justice Antonin Scalia by citing his fiercely anti-gay Windsor dissent as reason to strike down Utah’s ban. This bit of mockery might offend the court’s judicial sensibilities.
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But Fisher is somewhat new to the marriage equality field, especially compared with a veteran like Paul Smith or dedicated gladiators like Olson and Boies. As much as the justices adore Fisher, then, they may prefer a more experienced gay rights litigator to make the case for marriage equality.
If the Supreme Court wants to go small (as it opted to do in the Prop 8 case), a minimalist ruling on the narrowest question makes Oklahoma attractive. As Fisher explains in his briefing, Oklahoma presents only the question of whether Oklahoma must allow same-sex marriages to be performed in the state, and not the secondary question raised in other appeals as to whether the state must recognize marriages performed elsewhere. As Fisher argues in his brief, there are various good reasons for the court to wait to address the broader issue of recognizing out-of-state marriages.
Fisher alternatively suggests that if the court wants to go big, it should take multiple cases (including Oklahoma’s) precisely because, as he explains in his brief, “no single case can present a foolproof vehicle.” He urges that the variety of the state experiences “would enlarge the Court’s outlook and enhance its options.” Fisher urges that “the sheer importance” of deciding the marriage issue might mean the court should grant multiple petitions.
This case was filed the day after the Oklahoma ballot measure won approval, and is thus the longest-running challenge to be pursued against the raft of state bans enacted after the Massachusetts decision in 2004.
In a strange concurrence to the 10th Circuit's decision, Judge Jerome Holmes agreed that Oklahoma's ban was unconstitutional, but disagreed that it arose from anti-gay “animus.” This logic is problematic, as Justice Kennedy’s gay rights jurisprudence is built around the notion that anti-gay animus is constitutionally impermissible. Were the court to take the Oklahoma case, Kennedy might be forced to expand and elaborate upon his animus analysis.*
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While the justices could pick any combination of these cases, they could also simply ignore them—for a very good reason. The court prefers to decide cases in which different appeals courts have come to different conclusions, a so-called circuit split. At that point, it’s very clearly the high court’s job to step in and say what the law is. There is no such split at the moment; every Circuit Court to decide the issue has ruled in favor of marriage equality. Further, Justice Ruth Bader Ginsburg recently noted that, absent a circuit split, there is “no need for us to rush.” This tea leaf implies that the court might be waiting for a decision from the 6th Circuit—which seems poised to rule against marriage equality—before wading back into the marriage debate.
*Correction, Sept. 26, 2014: This article originally misstated that Judge Holmes issued his concurrence in the Utah case. He issued it in the Oklahoma case. (Return.)