Oct 1, 2014

Will the Supreme Court Take on the Issue of the States and Same-Sex Marriage? An Overview of the Route of the Same-Sex Marriage Issue to the Supreme Court

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Will the U.S. Supreme Court  take on the issue of the states and same-sex marriage ?  

This remains to be seen.  Last week, the Supreme Court put same-sex marriage cases originating in five different states on the list of cases to consider hearing.  The justices have now met, at least initially as of September 30, 2014, to consider the cases.  This conference is not to hear the cases and then issue a ruling, because the Supreme Court has not gotten that far.  Rather, since the Supreme Court has the option to accept or refuse a request to review a case from a lower federal court, they must first vote to hear the case.  If at least four of the nine justices agree to review these cases, a requirement known as the "Rule of Four", than a hearing will be scheduled and eventually the justices will rule on those cases leaving us with a majority decision and opinion on the subject of same-sex marriage at the state level.  If the justices decide to review the cases, the process of the hearing, conference, ruling and opinion writing could take about a year.  If the justices hear a case in the winter or spring, Americans could get a ruling by June or July of 2015.  The cases the Supreme Court is considering are from the 4th, 7th, and 10th Circuit Courts of Appeal, which are the federal appellate court for three circuits.  These cases originated in five different states: Utah, Oklahoma, Virginia, Indiana and Wisconsin.

How did same-sex marriage get to the U.S. Supreme Court?

Over the past year, suits have been filed in almost every state that legally bans same-sex marriage, including Georgia.  These suits are challenging these state denials of same-sex marriage, whether denied by state law or by the state constitution, as violations of the U.S. Constitution.  Supporters of same-sex marriage rights argue that to deny the ability of same-sex couples to acquire a marriage license from the state, and thus the same legal benefits as other married couples, is a violation of the 14th amendment's Equal Protection clause guaranteeing equal protection under the law.  Those that oppose same-sex marriage or support the state bans have argued in the courts that the U.S. Constitution does NOT prohibit the states from defining marriage in a way that excludes same-sex couples.  Some of these suits have made it out of the lowest level of the federal court system, district courts, and into the intermediate appellate level.  Each of these intermediate appellate courts have jurisdiction (authority) extending over a particular geographic boundary.  These geographic boundaries are referred to as "circuits".  The losing parties in these circuit courts of appeal, the supporters of state bans, have asked the U.S. Supreme Court to review the decisions of the lower courts in the hope that the Supreme Court will rule in favor of the state bans as constitutional exercises in state authority.  The Supreme Court is the last court of appeal.   If there is a hearing and a ruling, the decision of a majority of the Supreme Court justices will be the final decision and will essentially become law.  If there is no hearing and no decision, the decision of the lower court stands.  Every Court of Appeal that has heard a state same-sex marriage case has ruled the state's same-sex marriage ban as unconstitutional, a violation of the 14th amendment of the U.S. Constitution. Before this, only 1 out of 22 lower federal district courts had upheld a state ban as constitutional.  Therefore, no decision may mean that same-sex marriages can resume in the states' whose bans were overturned at the lower levels of the federal court system.

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