SALT LAKE CITY — It is likely the Supreme Court will take up one or more cases on same-sex marriage now that there's a split in rulings among federal appellate courts, Utah legal experts say.
The Supreme Court will meet in closed conference Friday to consider whether it will take up one or more cases on the issues of same sex-marriage and marriage recognition. The court sidestepped the issue last fall, opting not to hear appeals of appellate court decisions — including a Utah case — that overturned state bans on same-sex marriage.
Discussing whether to take up one or more of the cases is no guarantee the court will hear the case. But Friday's conference will be the first time the court has had the issue before it since October.
Bill Duncan, executive director of the Provo-based Marriage Law Foundation, said the Supreme Court owes it to the nation to provide clarity on the issue.
"If you live in some of the states, the Constitution is interpreted to say you have the ability as a state to decide what your own marriage laws are, and in just a little over half in the others, you don't have that under, presumably, the same Constitution. They've got to clarify what they meant in 2013 in the decision that's led to all of the cases. So I think clearly they need to do something," Duncan said.
Utah Federal Solicitor Parker Douglas, who defended the state's Amendment 3, said he believes the Supreme Court will take up the issue.
"I anticipate they'll take the case. I don't know whether they're going to do it quickly or take a long time, but I'd be surprised if they didn't," Douglas said.
"It's the Supreme Court's job to be the final word what the Constitution means so we know how to live our lives," he said.
In November, a federal court of appeals in Cincinnati became the first appellate court to uphold state bans on same-sex marriage. Plaintiffs from Kentucky, Michigan, Ohio and Tennessee are asking to court to reverse that decision. Each of the states is under the jurisdiction of the 6th Circuit Court of Appeals.
Thirty-six states now allow same-sex marriage, nearly twice as many as just three months ago.
In each of the five cases the Supreme Court will consider Friday, plaintiffs have challenged laws passed by state legislatures and constitutional amendments approved by voters from 1996 to 2006. In 2004, 66 percent of Utahns voted to amend the state constitution to define marriage as a union between one man and one woman.
Amendment 3 was overturned in a federal district court ruling, which was later upheld by the 10th Circuit Court of Appeals. The state petitioned the Supreme Court to take up an appeal of the circuit court decision, but the Supreme Court declined, allowing federal appeals court rulings striking down gay marriage bans to stand in Virginia, Indiana, Wisconsin, Oklahoma and Utah.
While many legal scholars say the split within the 6th Circuit will be the impetus for the Supreme Court to take up one or more cases, Douglas said even among circuits that upheld lower court rulings that struck down marriage bans, the rulings were not uniform.
Two circuits, including the 10th Circuit Court of Appeals in Kitchen v. Herbert, held that same-sex marriage bans violated equal protection and due process protections.
But the 9th Circuit decision hinged solely on an equal protection violation, Douglas said.
The rulings differed in other ways, he said.
"So you had five different circuits saying that the Constitution said it was impermissible for five different constitutionally incompatible reasons. Now that's a split because the equal protection and due process clauses of the Constitution can't mean five different things," Douglas said.
"We had a split before we had a split."
It is unclear whether the Supreme Court will announce its decision Friday, the following Monday or take more time to consider whether to take up the cases.
One of the cases the court has been asked to take up for review has not yet been heard by a circuit court, a Louisiana case, Robicheaux v. Georgia. At issue is whether a state’s constitutional and statutory bans denying same-sex couples the right to marry and have their marriages recognized violates the due process and equal protection clauses.
While an appellate court decision might provide more context for the court's ruling if it decides to take up a case or cases, Duncan said "it's hard to imagine that 5th Circuit or any circuit at this point is going to say anything so dramatically different than has been said by either the 10th, 4th, and 9th circuits or by the 6th Circuit. Either marriage is constitutional or it's not."
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