Same-sex marriage returns to the Supreme Court

August 28, 2014

Supreme Court LGBTIf the summer blockbusters from the past several years are any indication, Hollywood likes to do sequels.  Now, apparently, so does the Supreme Court.  After all, it was only a year and a half ago that the Supreme Court addressed the issue of same-sex marriage in its U.S. v. Windsor and Hollingsworth v. Perry decisions in June of 2013.

Now, it appears as though the issue will be one of the most significant of its upcoming term.  Ironically, this is due to the impact of the abovementioned Windsor decision, through which, at the time of the ruling, the Court appeared to be more resolving the issue than delaying doing so.

Yet, here we are, only two terms later, revisiting the issue – all because of Windsor.  Am I being unfair to Windsor and its impact?  Well, considering that every single court ruling that has overturned a state same-sex marriage ban since Windsor has heavily relied on the ruling as the basis for striking down the respective state ban in each case, probably not.

I covered the rulings through this past June in these two posts, and since their publication, there have been several more rulings:

  • On June 25, Indiana’s same-sex marriage ban was struck down by U.S. District Court Judge Richard L. Young (the ruling was stayed two days later by the Seventh Circuit pending appeal).
  • That same day, the Tenth Circuit Court of Appeals ruled in Kitchen v. Herbert, affirming the lower court’s decision that Utah’s same-sex marriage ban violates the Constitution.
  • On July 9, a Colorado state judge struck down the state’s ban.   On July 23, in a separate proceeding, a federal judge struck down the same ban.
  • On July 17, a Florida state circuit judge struck down the state’s same-sex marriage ban as it applied to Monroe County.   On July 25, another circuit judge struck down the ban as applied to Miami-Dade County.  On August 4, yet another circuit judge struck down the state’s ban as applied to Broward County.  Finally, on August 21, a U.S. district court judge struck down the ban in its entirety.  The rulings were stayed pending appeal.
  • On July 28, the Fourth Circuit affirmed the lower court’s decision in Bostic v. Schaefer in striking down Virginia’s same-sex marriage ban.  The Supreme Court stayed enforcement of the ruling on August 20.
  • Also of note: on August 5, Tennessee became the first state to have its same-sex marriage ban survive judicial scrutiny since Windsor was decided.

In case you’ve lost track, cases involving the bans of the states of Virginia, Oklahoma, and Utah are currently seeking review with the Supreme Court.  Considering that the Court itself has directly intervened in Utah’s and Virginia’s cases in staying the decisions striking down the bans, it seems all but certain that the Court will review one or more of these cases in the upcoming term.

But which one?  We won’t know until the Court makes such an announcement for itself.  Will it make a difference which case is selected by the Court?  Although the rulings all used rationales that differed in varying degrees, they all presented the same basic question: does a state-level prohibition on same-sex marriage violate the U.S. Constitution?

And that’s the question that we can expect the Court to address in the upcoming term, regardless of which case or cases are selected.