Friday, August 22, 2014

SCOTUS Stays Virginia Marriages, Maintains Suspense On Its Position On Marriage Equality

While I was driving from Los Angeles to Albuquerque via Tucson on Wednesday, the Supreme Court issued a stay in the Virginia marriage equality case Bostic v Schaefer, preventing same-sex marriages from happening in that state the next day. This was not a surprise, as the Court has issued stays four other times this year in other similar cases. However, these actions don't really tell us much about what the Supreme Court will ultimately rule on the marriage equality question, says noted Supreme Court expert Lyle Denniston at SCOTUS blog:
Through all of this year, from January on, the Court could not help but be aware of what was happening in the lower courts, with a string of decisions nullifying state bans on same-sex marriage.  The fact that the Court has been drawn in on five occasions has kept it in the middle of the controversy, even if it has mostly kept its own counsel about what it is thinking. 
With a little more than five weeks until the Justices assemble in their first private Conference, in advance of the new Term starting October 6, it is by no means clear that any same-sex marriage case will be ready for the Justices to consider it on September 29.  That depends, in part, on whether the Court will have cases before it one at a time, as each is ready, or in a group., when several are ready. 
The last scheduled day for distributing a case for consideration by the Justices at the September 29 meeting is September 10 — now, just three weeks away.  The pending Utah case has a fair prospect of being ready then, but there is reason to doubt at this point that the pending Oklahoma and Virginia cases will be complete.  The lawyers involved have said they were working diligently to push matters along, but the clock is against them for action by the Justices at the outset of the new Term. 
There will be plenty of time, though, to get a case before the Court for decision during the new Term.  If a case is accepted for review by sometime next January, it is almost certain to be decided before the end of the Term, late next June. 
Is a grant of review a certainty in coming months?  There is never a sufficiently strong advance signal to predict that.

So, basically even if a critical mass of marriage cases is not ready by the September 10th deadline, almost certainly enough will be ready by the January deadline that the Court will have take a position (of whether they want to decide these cases outright, or to wait for a Circuit split and then a likely ruling in an election year instead of in 2015). I suspect we'll have an answer by June 2015 and it will be one that surprises most people.

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