By Marcia Coyle, From Supreme Court Brief
The stage is set once again for review by the U.S. Supreme Court of the constitutionality of same-sex marriage bans. Will the justices raise the curtain this time?
All of the briefs are in. All of the parties in five pending petitions, with the exception of the state of Tennessee, are urging the high court to grant review. Moreover, there now is a split among the federal appellate courts— thanks to the U.S. Court of Appeals for the Sixth Circuit—a key criterion for review.
“If the court has been waiting until the country is more comfortable with gay marriage, they’ve waited long enough,” said former acting solicitor general Walter Dellinger of O’Melveny & Myers. “The comfort level is there, and that makes a nationwide ruling an easier step for the court.”
The justices have scheduled their first look at the five petitions for their first conference of the new year, on Jan. 9. The Sixth Circuit upheld state bans in Michigan, Ohio, Kentucky and Tennessee. The fifth petition is a challenge to a district judge’s decision upholding Louisiana’s ban.
In October, the justices defied conventional wisdom by declining to grant review in seven petitions stemming from rulings by the Fourth, Seventh and Tenth circuits. Since then, the legal fight over marriage equality has clearly favored proponents.
As the Human Rights Campaign recently noted, 2014 was the “most momentous yet” for marriage equality. At the start of the year, same-sex marriage was legal in 16 states and the District of Columbia. By year’s end, 35 states and D.C. permitted those marriages. After the Supreme Court in December denied Florida’s request for a stay of a federal district judge’s ruling striking down that state’s ban, same-sex marriages were scheduled to begin on Jan. 6, making Florida the 36th state.
The fact that nothing adverse has happened in states permitting same-sex marriage is “a fact of enormous consequence,” Dellinger said. “So, by the time this issue comes to the court, even this term, it’s going to be so clear that nothing adverse seems to happen to the institution of marriage or any other institution that we can see.”
Although he believes the court should and will act, Dellinger cautioned, “I think the court is ready but I wouldn’t consider it a sure thing that they will take a grant this time.”
Despite the circuit split, he said, the court does not take every case in which there is a circuit split.
“It’s not the kind of circuit split that causes economic dislocation requiring the court’s intervention, for example,” he said. “It is not like a tax case where you can’t have two different, federal tax regimes in different circuits that influence where companies transact their business. I think the court will take [same-sex marriage], but it’s not an essential grant.”
Kermit Roosevelt of the University of Pennsylvania School of Law said he remains puzzled that the justices denied review in October. “One reason the court will take a case is if there is a split in the circuits, but another reason—and I know from my experience clerking is true—is if a court, federal or state, invalidates a state law on federal constitutional grounds,” he said. “That is an offense against the state’s dignity. The Supreme Court generally feels [that] if the federal judiciary is going to say that to a state, it should be the Supreme Court saying it. So it was a little bit strange to me they did not act earlier.”
Roosevelt believes the denials last fall reflected Chief Justice John Roberts Jr.’s concern for the court’s institutional standing and legitimacy.
“Certainly, he would not want an anti-gay marriage decision, because I think he would understand that in 10 to 15 years time, that would look like a retrograde and insensitive act by the court,” Roosevelt said. “He doesn’t want his chief justiceship to be marred by a modern-day Plessy v. Ferguson [upholding racial segregation under the separate-but-equal theory). If Roberts thought there was a chance the court would rule against same-sex marriage, he would be interested in denying certiorari.”
Or, he theorized, Roberts may have entertained hopes of reaching a unanimous decision, as was the case in Loving v. Virginia, striking down that state’s ban on interracial marriages, and Brown v. Board of Education, desegregating public education. However, Roberts’ best hope now may be to avoid embarrassing dissents by the court’s conservatives.
“I don’t think there’s any way he could get [Justices Antonin] Scalia and presumably Clarence Thomas,” he said. “[Samuel] Alito would be a surprise. If you go back 20 years or so, the arguments are, ‘Look, homsexuality is deviant and immoral and same-sex marriage is absurd.’ As time goes on and attitudes shift, the arguments become more respectful: ‘This is a big change; we’re uncertain about the consequences; we should move slowly.’ More respectful dissents are probably what Roberts will be working for.”
Dellinger believes Roberts’ position on same-sex marriage is the “one vote in doubt.” Also in doubt, he said, is the exact timing, but not whether the court will act.
“These cases appear to be on the bubble for whether they can make it on the docket this term,” he said. “If the justices take it, it’s quite likely they will take it to decide next term, with a decision in late spring of 2016. Any justice can ask for a case to be put over to the next conference. It may turn out [that] if a single justice asks for the case to be reconferenced, that would necessarily push it into the next term.”
IMAGE: Jayne Rowse, left, speaks as April DeBoer, kisses her during a news conference in Ferndale, Mich., on March 21, 2014. The Michigan couple is putting the question of the right to marry nationwide squarely before the Supreme Court.
Paul Sancya/AP Photo
For more on this story go to: http://www.nationallawjournal.com/supremecourtbrief/id=1202713527632/Is-High-Court-Ready-to-Decide-on-SameSex-Marriage#ixzz3NNpdZxtq

Related story:
37 companies file brief supporting same-sex marriage in Florida
By Andrew Ramonas, From The National Law Journal
Delta Air Lines Inc., General Electric Co., Target Corp. and 34 other employers have come together to support plaintiffs fighting in a federal appeals court to overturn Florida’s same-sex marriage ban.
The businesses last week said in an amicus brief in the U.S. Court of Appeals for the Eleventh Circuit that the prohibition in Florida and same-sex marriage bans in Georgia and Alabama are “against our core values and principles.” The Atlanta-based Eleventh Circuit includes Florida, Georgia and Alabama, states in which the companies operate.
The employers said compliance with the bans brings additional administrative costs and hurts their ability to hire and keep a diverse workforce. Former Bingham McCutchen partners Susan Baker Manning (left) and Michael Whitlock, who are now at Morgan, Lewis & Bockius in Washington, are among the lawyers who helped write the 49-page friend-of-the-court brief for the companies.
In addition to Delta, GE and Target, other major businesses that signed onto the filing include AT&T Inc., CBS Corp., eBay Inc., Levi Strauss & Co., Marriott International Inc., Oracle Corp., Pfizer Inc., Staples Inc. and Viacom Inc.
“Employees with partners of the same sex should be permitted to marry if they so choose, and then should be treated identically to their married heterosexual counterparts,” the companies’ amicus brief said. “By requiring otherwise, Florida, Georgia, and Alabama force our businesses to uphold discriminatory laws that run counter to our stated corporate values, harm our ability to attract and retain the best employees, and impose a significant burden on us. In the end, our ability to compete and to grow suffers.”
Florida Attorney General Pam Bondi, a Republican, in September asked the Eleventh Circuit to reconsider a lower court decision in favor of same-sex marriage. U.S. District Judge Robert Hinkle in Tallahassee ruled in August that the same-sex marriage ban backed by Florida voters in 2008 violates the 14th Amendment’s equal-protection and due-process rights.
The companies in their brief argued that pro-gay marriage rulings by the U.S. Court of Appeals for the Fourth Circuit and other federal courts show growing support for same-sex marriage.
“Reversal would serve only to prolong an unproductive, inequitable, and unjust status quo,” the companies’ brief said.
The Eleventh Circuit, over Florida’s objection, recently refused to further prolong the ban on same-sex marriage in that state. The U.S. Supreme Court, divided, on Dec. 19 also refused to stop same-sex marriage in Florida. The stay is expected to be lifted Jan. 5.
Photo: John Disney/Daily Report
For more on this story go to: http://www.nationallawjournal.com/id=1202713534436/37-Companies-File-Brief-Supporting-SameSex-Marriage-in-Florida#ixzz3NNr4PEL2