UPDATED 11:21 a.m. The four same-sex marriage cases challenging the Sixth Circuit’s ruling that upheld four states’ bans have now been set for consideration by the Justices at their Conference on Friday of this week. The post below has been expanded.
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The Supreme Court, returning from its winter recess, decided on Monday not to take on a same-sex marriage case that remains under review in a federal appeals court, but otherwise took no action on that constitutional controversy. The Court made no comment as it turned down a plea by same-sex couples in Louisiana to review that state’s ban, which had been upheld by a federal trial judge in New Orleans (Robicheaux v. George). The Court may indicate later in the day when it may next consider four same-sex marriage cases that were decided earlier by the U.S. Court of Appeals for the Sixth Circuit.
The Court did not grant review of any new cases, but it did ask the U.S. Solicitor General for the federal government’s views on three cases: two software technology cases involving Google, Inc., and a case filed by Washington, D.C., area commuters, challenging the legality of the agencies that set tolls on a major rush-hour highway to and from the city. The software cases are Google v. Oracle America — a major case dealing with Google’s Android smartphone platform — and Google v. Vederi, dealing with the Patent Office’s handling of patents on Google’s “Street View” technology, giving ground-level computer images of a neighborhood or street. Justice Samuel A. Alito, Jr., is not taking part in the Google-Oracle case. The Dulles Toll Road case is Corr v. Metropolitan Washington Airports Authority.
The Court’s denial of review in the Louisiana same-sex marriage case is not a reliable indicator of the Court’s current interest in the authority of the states to ban same-sex marriage. The couples in the Louisiana case had asked the Court to bypass the U.S. Court of Appeals for the Fifth Circuit, and take on the case without waiting. The Justices’ response probably indicates a desire not to intrude into the review by the Fifth Circuit, which held a hearing on the Louisiana case, and two others, just last Friday. The Court seldom chooses to bypass appeals courts, although it clearly has the authority to do so.
The Justices have a private Conference scheduled for Friday of this week, and the other cases, from the Sixth Circuit, may be considered then. A final word on that scheduling may come before the end of the day Monday.
Since the Court refused on October 6 to grant review of the first round of same-sex marriage appeals to reach it after a wave of federal and state court rulings over an eighteen-month span, a split developed when the Sixth Circuit in early November upheld the bans in Kentucky, Michigan, Ohio, and Tennessee, leading to a second round of appeals to the Justices.
Together, those four new cases raise the questions of both state power to prohibit same-sex marriages at all and the state power to refuse to recognize same-sex marriages performed elsewhere. Among the four new cases, the Kentucky case raises both questions, while the cases from the three others raise one of the two questions. The Court has the option of granting one or more of the cases or of denying all of them — an unlikely prospect, in view of the direct conflict among lower court rulings.
If the Court were to take on the issue, it probably would schedule a hearing for the final argument session of the year, in late April. A final decision could come before the summer recess.
Among the lengthy list of cases that the Justices on Monday chose to turn aside was a case urging it to reopen the question of police authority to obtain a blood sample from a driver suspected of drunk-driving, a question left somewhat unsettled by the Court’s 2013 decision in Missouri v. McNeely. The new case was Colorado v. Schaufele, urging the Court to revisit the issue and to adopt a view expressed by Chief Justice John G. Roberts, Jr., in the McNeely case that would give police some additional flexibility about obtaining a blood sample without a warrant.
The Court also refused, over a strong dissent by Justice Alito, to review a ruling by the Sixth Circuit allowing a worker to complain of workplace discrimination after being assigned to a position that the worker had actually sought. That case was Kalamazoo County Road Commission v. Deleon. No other Justice signed onto the Alito dissent, which urged the Court to summarily overturn the Sixth Circuit’s ruling as “clearly wrong.”
A new attempt to challenge the Affordable Care Act’s mandate that nearly all Americans must obtain health insurance, on the theory that this involved an unconstitutional seizure of property from those who do not want insurance, was denied without comment. The case of Association of American Physicians & Surgeons v. Burwell had a number of procedural problems, and there appeared to be little chance that the Court would grant review.
