U.S. Supreme Court: Which case makes the best case for marriage equality?

Gay rights advocate Vin Testa waves a rainbow flag in front of the Supreme Court in Washington. On June 26, 2013, the U.S. Supreme Court issued a pair of landmark rulings, one striking down a law that denied federal recognition to same-sex marriages and the other clearing the way for gay couples to wed legally in California. J. Scott Applewhite, AP

Gay rights advocate Vin Testa waves a rainbow flag in front of the Supreme Court in Washington. On June 26, 2013, the U.S. Supreme Court issued a pair of landmark rulings, one striking down a law that denied federal recognition to same-sex marriages and the other clearing the way for gay couples to wed legally in California.J. Scott Applewhite, AP

Gay rights advocate Vin Testa waves a rainbow flag in front of the Supreme Court in Washington. On June 26, 2013, the U.S. Supreme Court issued a pair of landmark rulings, one striking down a law that denied federal recognition to same-sex marriages and the other clearing the way for gay couples to wed legally in California.

The U.S. Supreme Court could announce as early as Tuesday (September 30) which marriage equality case – or cases — it will accept for review this session. But, while the Court has seven marriage equality cases to choose from during its private working conference Monday (September 29), it may not choose any of those seven for review.

“If there’s no disagreement [among the circuits], then the Supreme Court has the option of not taking any case for a period of time,” said Roberta Kaplan, who represented plaintiff Edith Windsor in landmark Supreme Court case that struck down the key provision of the Defense of Marriage Act last year.

Justice Ruth Bader Ginsburg made just that point in remarks September 16 at a University of Minnesota Law School forum. Her host asked Ginsburg to comment generally on marriage equality cases before the high court and discuss whether she thinks the court will and should take a case “as soon as possible.”

“So far, the federal courts of appeal have answered the question the same way – holding unconstitutional the ban on same-sex marriage,” said Ginsburg.

“There is a case now pending before the Court of Appeals for the Sixth Circuit. Now, if that court should disagree with the others, then there will be some urgency in the courts for taking the case. But when all the courts of appeal are in agreement, there’s no need for us to rush to step in,” she said. “It remains to be seen what the Sixth Circuit would rule, when it will rule. Sooner or later, yes, the question will come to the court….”

Her comments attracted attention from Supreme Court observers because the court had been rather quick to put the seven cases on its list for discussion at its first big “long” conference. But Ginsburg was basically voicing what many such observers already know: The Supreme Court is more keen on taking appeals when there’s a disagreement among the circuits.

So far, four appeals courts have ruled such marriage bans unconstitutional: the Ninth (in last year’s Proposition 8 case), the Tenth (Utah and Oklahoma), the Fourth (Virginia), and the Seventh (Wisconsin and Indiana).

Another Ninth Circuit panel heard oral arguments September 8, in cases challenging bans in Hawaii, Nevada, Idaho, and Oregon, but it widely expected to find once again that the bans are unconstitutional.

But a three-judge panel of the Sixth Circuit U.S. Court of Appeals heard arguments August 6 in cases from Kentucky, Michigan, Ohio, and Tennessee, and it seemed to signal it was prepared to uphold state bans on marriage for same-sex couples. That would create a conflict, but the panel has not yet released its opinion.

If there was anything unusual about Ginsburg’s comments last week, it was that she expressed, very diplomatically, the widespread impression that the Sixth Circuit is likely to uphold the bans.

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