Gay marriage cases from around the country are working their way to the high court, and the justices may well review one or all of them.
The Supreme Court has been dodging the issue, first by declining to issue a ruling in the 2012 case United States v. Windsor and then by refusing to hear seven such matters in October 2014. But now, a split in the circuits may force the Court’s hand. The Sixth Circuit Court of Appeals has upheld same-sex marriage bans in Kentucky, Ohio, Tennessee and Michigan, while the Fourth, Seventh, Ninth and Tenth Circuits have held these bans to be unconstitutional.
In the Fifth Circuit, which covers Houston and the rest of Texas, a hearing is scheduled in New Orleans in January. That case may ultimately wind up before the Supreme Court as well.
Unlike most other courts, the Supreme Court gets to pick and choose the cases it hears, at least for the most part. In fact, the SCOTUS refuses to hear a majority of the writs for certiorari – the formal name of the request for a hearing – that it sees. According to Rule 10, the Supreme Court will consider cases in which there is:
The Court is sharply divided right now, with four progressive justices (Elena Kagan, Stephen Breyer, Sonia Sotomayor, Ruth Bader Ginsburg) and four conservatives (Chief Justice John Roberts, Samuel Alito, Clarence Thomas, Antonin Scalia). Anthony Kennedy, a Ronald Reagan appointee, is usually the swing vote. In Windsor, he voted with the progressives in a 5-4 decision.
In October 2014, Justice Kennedy did enter an order allowing gay marriage in Nevada, which may indicate that he may once again side with the progressive wing if and when the issue comes before the Court again. But, then again, Windsor may have been a narrow decision because Justice Kennedy did not want to legalize same-sex marriage. An awful lot of things can happen between now and the summer of 2015, which is probably the earliest time the Supreme Court would render a decision.
A decision regarding marriage equality could be one of the defining moments for the Supreme Court. For a free consultation with a qualified and compassionate family law attorney, contact our office. We are proud to serve families in Humble, Kingwood, Atasocita, Greenspoint and Houston.