UPDATED 6:31 p.m. All of today’s filings in the two cases have now been linked.
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With lawyers moving very rapidly, the number of appeals to the Supreme Court on same-sex marriage rose on Tuesday to seven, as state officials in Indiana and Wisconsin separately challenged a federal appeals court ruling against their bans, and lawyers for the couples planned to file immediate replies. The new cases landed at the Court five days after that decision; the states had the option of taking ninety days to file.
Along with the two new filings, the Court has awaiting it individual petitions on the issue from Oklahoma and Utah and three from Virginia. In all of the cases, both sides and a lengthening list of “friends of the Court” have agreed that the Court should take on the constitutional controversy now. The Court may indicate as early as tomorrow which of the seven cases, if any, will be considered by the Justices at their first Conference of the new Term, on September 29.
The Indiana petition is here, the couples’ response to that petition is here, the Wisconsin filing is here, and the couples’ response to that petition is here.
Taken together, the seven cases raise both of the constitutional questions that have arisen in lower courts in a wave of decisions over the past fifteen months: do states have the authority to refuse to allow gay and lesbian couples to marry, and do they have the authority to refuse to recognize same-sex marriages performed for their residents in other states.
The Court has the option of taking on either or both issues, and it also has the option of putting off any consideration for the time being, despite the heavy pressure from virtually everyone involved in the cases, who contend that the Court should not wait any longer to decide. None of the cases is a mandatory appeal. It would be highly unusual, however, for the Court to pass up all of the cases, when everyone is championing review now.
If the Court opts to take on the controversy anytime up to mid-January, a final ruling could be expected before the new Term is completed late next June.
As lawyers in other cases have done, the attorneys for Indiana and Wisconsin contended that their cases were ideal offerings for the Court on the controversy. Both cases raise both of the constitutional questions.
The same-sex marriage controversy has developed at uncommon speed since the Supreme Court, in June of last year, ruled in the case of United States v. Windsor. In that ruling, the Justices struck down a key part of the federal Defense of Marriage Act that limited federal marital benefits only to married opposite-sex couples. Although the Court said it was not then ruling on state authority to deny marriage rights or recognition of existing marriages of same-sex couples, most of the lower court rulings since then have used reasoning from the Windsor decision in striking down state prohibitions.
As of now, there is no current split among federal appeals courts on either of the issues that have been developing since Windsor. Some lawyers for states have contended that there is now a split, between the recent round of appeals courts decisions against marriage bans and a 2006 (pre-Windsor) decision with the opposite outcome from the U.S. Court of Appeals for the Eighth Circuit.
Decisions are now awaited in two more appeals courts — the Sixth and Ninth Circuits — following hearings on those courts covering a total of seven states’ cases. The Fifth Circuit also has a case pending from Texas, but — although it has been asked to set an expedited date — it has not yet scheduled a hearing date.
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