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.