UPDATE 7:51 p.m. The Obama administration will file a brief in the same-sex marriage cases, supporting equal access to marital rights in all of the states, Attorney General Eric Holder said in a statement.
Taking on a historic constitutional challenge with wide cultural impact, the Supreme Court on Friday afternoon agreed to hear four new cases on same-sex marriage. The Court said it would rule on the power of the states to ban same-sex marriages and to refuse to recognize such marriages performed in another state. A total of two-and-a-half hours was allocated for the hearings, likely in the April sitting. A final ruling is expected by early next summer, probably in late June.
The Court fashioned the specific questions it is prepared to answer, but they closely tracked the two core constitutional issues that have led to a lengthy string of lower-court rulings striking down state bans. As of now, same-sex marriages are allowed in thirty-six states, with bans remaining in the other fourteen but all are under court challenge.
Although the Court said explicitly that it was limiting review to the two basic issues, along the way the Justices may have to consider what constitutional tests they are going to apply to state bans, and what weight to give to policies that states will claim to justify one or the other of the bans.
In a part of the order that was not entirely clear, the Court instructed lawyers to limit their written and oral arguments to the specific issues they had raised in taking the cases to the Court. That apparently meant that couples seeking to marry can only raise that issue, and couples seeking official recognition of their existing marriages can only argue that question.
One issue that this instruction seemed to have taken out of the review was a plea, raised by Tennessee couples, that a ban on same-sex marriage interferes with their constitutional right to travel. That was not one of the two questions the Court set for review, but lawyers for the couples may seek to fit it in under the Fourteenth Amendment issues the Court will be reviewing.
From the point of view of the four states involved in the cases, their lawyers apparently will not be prevented from making arguments on two points to try to help them salvage their bans: first, that the Supreme Court settled that issue in a summary ruling in 1972 in the case of Baker v. Nelson, so that is the answer to both questions; and, second, that federal courts have no jurisdiction to rule on matters of domestic relations, including marriage, meaning that the regulation of marriage has to be left to the states to decide.
The Court told the lawyers for same-sex couples to file their written briefs on the merits by February 27, and the lawyers for the states to file by March 27. Reply briefs by the couples’ lawyers are due on April 17.
The Court is scheduled to hold its final session of oral arguments from April 20 through 29, so the same-sex marriage cases will be scheduled during that time. The order issued on Friday did not set that date; that will be done later.
The focus of the Court’s review will be a decision issued in early November by the U.S. Court of Appeals for the Sixth Circuit. That decision, breaking ranks with most other courts, upheld bans on marriage or marriage-recognition in Kentucky, Michigan, Ohio, and Tennessee.
Friday’s order granted review of one petition from each of those states; the petitions phrase the two basic issues in somewhat different ways, which is why the Court rewrote them to make specifically clear what it intended to review.
The Kentucky case (Bourke v. Beshear) raises both of the issues that the Court will be deciding, the Michigan case (DeBoer v. Snyder) deals only with marriage, and the Ohio (Obergefell v. Hodges) and Tennessee cases (Tanco v. Haslam) deal only with the recognition question. If customary practice is followed, the first case listed in the order — the Ohio case Obergefell v. Hodges — will become the historic title for the final ruling.
n addition to the same-sex marriage cases, the Court agreed on Friday to hear four other new cases, all of which are also expected to be argued in April.
Here, in summary, are the issues in those other cases:
In Mata v. Holder, the Court will be ruling on the authority of federal appeals courts to delay a deadline for a non-citizen to seek reopening of a deportation case with a claim that his lawyer was ineffective.
In Horne v. U.S. Department of Agriculture, the Court agreed to decide whether an unconstitutional seizure of part of a California raisin crop occurs when the federal government requires the private grower to take it off the market to help keep raisin prices up. The case had been before the Court earlier, resulting in a decision that left open the question of the government’s raisin marketing order constituted a “taking” of private property. The specific issue in the case is whether protection against such a “taking” applies only to real property, or may also apply to personal property, such as a crop of raisins.
In McFadden v. United States, the issue is whether federal prosecutors must prove that an individual accused of distributing a substance actually knew that the material was a substitute for (an “analogue” of) an illegal narcotic drug.
In Kingsley v. Hendrickson, the Court will clarify when the police use of force against an individual who is being held awaiting a criminal trial is unconstitutionally excessive.
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in McFadden. However, the author of this post is not affiliated with the law firm.]