UPDATED Wednesday 2:54 p.m. The Supreme Court has not yet scheduled any of the new same-sex marriage cases for consideration at the January 9 Conference, according to the latest updates on the Court’s electronic docket. There are still opportunities to do so, however, later in this month. It may be that the Court is waiting for all of the five pending petitions to have all filings submitted before scheduling them for consideration.
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Giving the Supreme Court a fuller set of same-sex marriage cases to consider, probably in early January, the governor of Kentucky today joined in urging the Justices to rule on the controversy because it is “important to all citizens of this nation.” The Kentucky case (Bourke v. Beshear) tests the power of states to both prohibit same-sex marriages and refuse to recognize such marriages performed in other states.
With the Kentucky filing, two cases seeking review of a decision by the U.S. Court of Appeals for the Sixth Circuit, upholding the bans in four states, are now close to ready for the Justices to review. The other challenge to the Sixth Circuit’s ruling came from a Michigan case; there is also a case from Louisiana which tests that state’s ban before the U.S. Court of Appeals for the Fifth Circuit reviews it.
In all three of those cases, the issues surrounding same-sex marriage are put before the Court in a variety of contexts, and, in each, state officials — while defending their bans — have urged the Justices to step in and issue a final ruling. Depending upon how soon the cases are assembled and sent on to the Justices, they could be considered as early as the private Conference set for January 9.
There are two other pending petitions, from Ohio and Tennessee, that also challenge the Sixth Circuit’s decision, but state officials have not yet responded to either of those. The deadline for the states’ briefs is currently next Monday. Those two cases are narrower in scope than the Michigan and Kentucky cases, however.
The Court’s staff will be sending scores of cases, raising all kinds of issues, to the Justices throughout this month for consideration at the January 9 Conference. The same-sex marriage cases might be among them. But there is no certainty that, even if all of the same-sex marriage cases are among those scheduled for that session, the Justices actually will act on them at the time. It could hold them over for at least a week to weigh them further. Cases granted during January have a good chance of being heard and decided by the Court before the current Term ends in late June or early July.
The brief filed on behalf of Governor Steve Beshear actually embraces two separate cases from Kentucky that were decided by the Sixth Circuit — one on the ban on new same-sex marriages, the other on the ban on recognition of out-of-state same-sex marriages. When those cases were being resolved in a federal trial court, the judges actually used different constitutional standards to analyze them, resulting in the same outcome — the bans were struck down.
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