The Supreme Court Waiting Game

Back in November, the plaintiffs in the dual Kentucky marriage equality cases, Bourke v. Beshear and Love v. Beshear, for which I am one of the attorneys, petitioned the Supreme Court for review of the Sixth Circuit Court of Appeals decision upholding Kentucky's ban on same sex marriage. The defendant, Governor Steve Beshear, filed a response supporting review by the Court.

Late last month, the plaintiffs filed a final reply, introducing additional counsel (including Jeffrey Fisher of Stanford Law School and attorneys with the American Civil Liberties Union) and providing additional context for the Court as to what is at stake and the harms being caused by the state's ongoing ban.

Since then, things have been quiet. As is normal in this process, once all the initial filings are submitted, the Supreme Court then schedules a private conference among the Justices to consider which cases to take up (or, in court parlance, "grant certiorari").

The Kentucky cases, along with other cases from Michigan, Ohio, Tennessee, and Louisiana, were discussed in conference today. The Los Angeles Times ran a nice summary of the cases.

The first chance for an announcement came at 2pm, when the Court issued a "Miscellaneous Orders" list. However, the Court only addressed two cases, neither of which was any of the same sex marriage appeals. The next chance for news comes next Monday at 9:30 p.m. Mondays are the typical days for orders from the Court announcing grants and denials of cert.

Now, what could happen on Monday? There are a few possibilities. First, the Court could announce that it will hear one - or some, or all - of the same-sex marriage cases and schedule a date for formal oral argument in the Court's chambers.

Or, the Court could deny cert. to all or some of the cases, effectively upholding the decision of the Sixth Circuit Court of Appeals. But that would enshrine the existing "Circuit split" where some federal courts interpret the U.S. Constitution differently than others. This is a situation, especially in cases of major social importance, which the Court rarely tolerates. Therefore a denial of cert. seems unlikely.

A third possibility is silence. The Court could decline to make any decision yet on the same-sex marriage cases and instead pass the discussion to the next conference, which will be held on January 16. Then a decision could be announced either that afternoon or the next Monday, January 19. The Court could even pass the cases to the final conference on January 23.

In order for the Court to hear the same-sex marriage cases during the current term, a decision must be made before the end of January. If no decision is made, the Court could wait to hear the case early next term, which starts in October, 2015.

Though the Supreme Court does things in an often highly organized way, they retain incredible discretion when it comes to when they do those things. So predicting when or how the Court will decide on the same-sex marriage cases is nearly impossible.

The Kentucky plaintiffs and their attorneys certainly hope an announcement is made soon. Same-sex couples in Kentucky and in the few remaining states still discriminating against them have been waiting a very long time for their right to marriage to be recognized. Hopefully the wait will soon be over.

Selective Citation

Idaho governor Butch Otter this week filed an amicus brief in response to the pending Petitions for Writ of Certiorari from the Sixth Circuit same-sex marriage decision (which upheld the states' bans).

In it, Governor Otter argues that the Idaho case of Latta v. Otter is a better vehicle than any of the Sixth Circuit cases for the Supreme Court's ultimate and inevitable ruling on the question of whether same-sex marriage bans violate the Fourteenth Amendment. Primarily, he says, Idaho alone has vigorously defended its ban against all challenges, including the argument that such bans should be subjected to so-called "heightened" judicial scrutiny.

The governor also attacks the very idea of same-sex marriage as an unreasonable "redefinition" of a traditional institution. To bolster this argument, he says:

Writing not long ago, Judge [Richard] Posner described same-sex marriage as "a radical social policy." Richard A. Posner, Should There Be Homosexual Marriage? And If So, Who Should Decide? 95 Mich. l. Rev. 1578, 1584 (1997).

But why cite to something Judge Posner wrote "not long ago" in 1997, when that same Judge Posner wrote about same-sex marriage just this year? Entirely omitted from Governor Otter's brief is any mention of the 2014 case Baskin v. Bogan, in which Judge Posner, writing for a three-judge panel of the Seventh Circuit Court of Appeals, struck down the same-sex marriage bans of Indiana and Wisconsin.

In that opinion, Posner writes:

[Wisconsin's] argument from tradition runs head on into Loving v. Virginia, 388 U.S. 1 (1967), since the limitation of marriage to persons of the same race was traditional in a number of states when the Supreme Court invalidated it. Laws forbidding black-white marriage dated back to colonial times and were found in northern as well as southern colonies and states. Tradition per se has no positive or negative significance. There are good traditions, bad traditions pilloried in such famous literary stories as Franz Kafka's "In the Penal Colony" and Shirley Jackson's "The Lottery," bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that from a public-policy standpoint are neither good nor bad (such as trick-or-treating on Halloween). Tradition per se therefore cannot be a lawful ground for discrimination - regardless of the age of the tradition.

Baskin v. Bogan, 766 F.3d 648, 666 (7th Cir. 2014) (internal citations omitted). (Otter's brief also omits any mention of Loving v. Virginia).

Regardless of whether Judge Posner once or still believes same-sex marriage is "a radical social policy," today he believes it simply doesn't matter for the purposes of the Fourteenth Amendment. It strikes me as odd to quote a specific author as an authoritative source without acknowledging his most important writing on the subject at issue. In this case, the controlling (and contrary) law of the Seventh Circuit.

Same-Sex Marriage: Kentucky Governor Supports Supreme Court Review

Today, Kentucky Governor Steve Beshear, through private counsel, filed his response to the Petition for Writ of Certiorari previously filed by plaintiffs in the same-sex marriage cases of Bourke v. Beshear and Love v. Beshear.

Normally, the party who won the case below will oppose Supreme Court review. However, Governor Beshear agrees with the plaintiffs that the legal questions presented in these cases are of exceptional importance, there is a "split" among the Circuit Courts of Appeal, and the Kentucky cases are good "vehicles" for the Supreme Court to address these issues. These are generally the most important factors the Supreme Court considers when deciding to review a lower court decision.

From Beshear's (rather brief) brief:

The right to same-sex marriage has been recognized in 44 states, plus the District of Columbia. In...33 states, recognition of the right to same-sex marriage has been by judicial declaration. A handful of those decisions have been stayed or, as in the Sixth Circuit, have been reversed on appeal. It is important for Kentucky - and the country -that the Court resolve the important question of who has the right to define marriage for a state, and if the role belongs to the States, then what is the appropriate standard by which the definition will be governed - rational basis, strict scrutiny, or a level in between.

Kentucky Marriage Equality Petition

The Plaintiffs in the dual Kentucky marriage equality cases Bourke v. Beshear and Love v. Beshear elected to file a Petition for Writ of Certiorari to the U.S. Supreme Court, asking the highest court in the country to review - and reverse - the recent holding of the Sixth Circuit Court of Appeals. That holding upheld discriminatory marriage laws in Kentucky as well as in Michigan, Ohio, and Tennessee. The Sixth Circuit is the only federal appellate court in the country to rule against challengers to such laws thus far. Four other Circuit Courts of Appeals have ruled against state bans.

A .pdf version of the complete Petition is here.

There are three primary arguments in favor of granting certiorari made by the Bourke and Love Plaintiffs: (1) there exists a profound split among the Circuit Courts on the issue of state marriage bans; (2) the Sixth Circuit opinion was incorrect and should be reversed; and (3) this issue is of critical national importance that deserves a quick resolution.

The Plaintiffs in the Michigan, Ohio, and Tennessee cases have each filed similar petitions of their own. It is possible that the Supreme Court could agree to hear all the cases together this term, or just one, or put them all off until next term. As the highest judicial body in the country, they enjoy considerable discretion.

Original Meanings

From the Sixth Circuit Court of Appeals decision upholding state same-sex marriage bans in Kentucky, Tennessee, Ohio, and Michigan, entered November 6, 2014:

Yes, the Fourteenth Amendment is old; the people ratified it in 1868. And yes, it is generally worded: it says, "[N]or shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Nobody in this case, however, argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.
Tradition reinforces the point. Only months ago, the Supreme Court confirmed the significance of long-accepted usage in constitutional interpretation...Applied here, this approach permits today's marriage laws to stand until the democratic processes say they should stand no more. From the founding of the Republic to 2003, every State defined marriage as a relationship between a man and a woman, meaning that the Fourteenth Amendment permits, though it does not require, States to define marriage that way.

The above passage appears in a subsection titled "Original meaning," discussing the Court's view of what "marriage" means traditionally in the United States. Other cases have similarly weighed on the "original meanings" of both the Fourteenth Amendment and the institution of civil marriage.

State v. Jackson, 80 Mo. 175, 176, 178-179 (Mo. 1883):

It may interfere with the taste of negroes who want to marry whites, or whites who wish to intermarry with negroes, but the State has the same right to regulate marriages in this respect that it has to forbid the intermarriage of cousins and other blood relations. If the State desires to preserve the purity of the African blood by prohibiting intermarriages between whites and blacks, we know of no power on earth to prevent such legislation. It is a matter of purely domestic concern. The 14th amendment to the Constitution of the United States, to which, by some, magical power is ascribed, has no such scope as seems to have been accorded to it by the circuit court.
...
Marriage acts similar to the one under consideration were in force in most of the slave-holding states prior to the adoption of the 14th amendment, and their validity was never questioned, no one supposing that there was, prior to that amendment, any provision of the federal constitution with which they were in conflict, and it is only by ascribing to that amendment a force and scope expressly denied it by the Supreme Court of the United States that any ground exists for questioning their validity now. Nor is it one of the natural rights of man to marry whom he may choose. . .The right to regulate marriage, the age at which persons may enter into that relation, the manner in which the rites may be celebrated, and the persons between whom it may be contracted, has been assumed and exercised by every civilized and Christian nation; and the condition of a community, moral, mental and physical, which would tolerate indiscriminate intermarriage for several generations, would demonstrate the wisdom of laws which regulate marriage and forbid the intermarriage of those nearly related in blood. It is stated as a well authenticated fact that if the issue of a black man and a white woman, and a white man and a black woman, intermarry, they cannot possibly have any progeny, and such a fact sufficiently justifies those laws which forbid the intermarriage of blacks and whites, laying out of view other sufficient grounds for such enactments.

Plessy v. Ferguson, 163 U.S. 537, 544, 545, 550 (1896):

The object of the [Fourteenth] [A]mendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced.
...
Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the State.
...
So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether [a state law] is a reasonable regulation, and, with respect to this, there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.

Daviess County Board of Education, et al. v. Johnson, 179 Ky. 34, 39 (Ky Ct. App. 1918):

Under our Bill of Rights and the Fourteenth Amendment to the Federal Constitution, it is not necessary that the rights or privileges of the two races shall be identical, but only that they shall be equal.

Harris v. City of Louisville, Buchanan v. Warley, 165 Ky. 559, 570 (Ky. 1915):

The enforced separation of the races alone is not a discrimination or denial of the constitutional guaranty; and if such separation should result in the members of the colored race being restricted to residence in the less desirable portions of the city, they may render those portions more desirable through their own efforts, as the white race has done. Economic equality is not created by statutory declaration nor guaranteed by the Fourteenth Amendment.

Stevens v. United States, 146 F.2d 120, 123 (10th Cir. 1944):

Marriage is a consentient covenant. It is a contract in the sense that it is entered into by agreement of the parties. But it is more than a civil contract between them, subject to their will and pleasure in respect of effects, continuance, or dissolution. It is a domestic relation having to do with the morals and civilization of a people. It is an essential institution in every well organized society. It affects in a vital manner public welfare, and its control and regulation is a matter of domestic concern within each state. A state has power to prescribe by law the age at which persons may enter into marriage, the procedure essential to constitute a valid marriage, the duties and obligations which it creates, and its effects upon the property rights of both parties. And within the range of permissible adoption of policies deemed to be promotive of the welfare of society as well as the individual members thereof, a state is empowered to forbid marriages between persons of African descent and persons of other races or descents. Such a statute does not contravene the Fourteenth Amendment.

Naim v. Naim, 197 Va. 80, 86, 89-90 (Va. 1955):

From the Slaughter-House Cases, to Brown v. Board of Education, and Bolling v. Sharpe, the Supreme Court has made no decision at variance with the holding in the Stevens case. It has on numerous occasions invoked the provisions of the Fourteenth Amendment to invalidate State legislation and decision with respect to political and civil rights, but it has not denied to the States the right to deal with their social and domestic problems and to legislate in regard to the marriage relation. On the contrary, it has been at pains to exclude that relation from the effects of its holdings.
...
We are unable to read in the Fourteenth Amendment to the Constitution, or in any other provision of that great document, any words or any intendment which prohibit the State from enacting legislation to preserve the racial integrity of its citizens, or which denies the power of the State to regulate the marriage relation so that it shall not have a mongrel breed of citizens. We find there no requirement that the State shall not legislate to prevent the obliteration of racial pride, but must permit the corruption of blood even though it weaken or destroy the quality of its citizenship. Both sacred and secular history teach that nations and races have better advanced in human progress when they cultivated their own distinctive characteristics and culture and developed their own peculiar genius.
Regulation of the marriage relation is, we think, distinctly one of the rights guaranteed to the States and safeguarded by that bastion of States' rights, somewhat battered perhaps but still a sturdy fortress in our fundamental law, the tenth section of the Bill of Rights, which declares: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."