3 Questions: 1972 Gay Marriage Case, Circuit Split, Stay for Va.? - U.S. Supreme Court
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3 Questions: 1972 Gay Marriage Case, Circuit Split, Stay for Va.?

Same-sex marriage: It's the hottest legal topic out there, one that despite a bit of issue fatigue, we end up covering every single day because there is some fascinating legal development at hand.

What's the latest on the many gay marriage appeals? After the Fourth Circuit declined to issue a stay in the Bostic case, where that court ruled against Virginia's gay marriage ban, state officials reached out to the U.S. Supreme Court for some timely intervention -- if no stay is issued, then gay marriage becomes legal in Virginia on Thursday.

Meantime, oral arguments in the Sixth Circuit, and a decision in a state court in one of that circuit's states, have drawn renewed attention to a decades-old order in which the Court already decided the gay marriage debate. But is it still valid?

Will SCOTUS Issue Stay in Va. Gay Marriage Appeal? (Likely)

We're still waiting on the gay marriage plaintiffs' response to the state's request for a stay pending appeal in the Virginia gay marriage case (it was due by 5 p.m. ET today, per SCOTUSblog), and of course, we'll be waiting for a decision from the Court on the request. But is there any way the Court doesn't stay the Fourth Circuit's decision pending appeal?

As we answered on our Fourth Circuit blog, the answer is a big fat "probably not." Though the panel declined to enter a stay, which would mean gay marriage becomes legal in Virginia as of Thursday morning, the Supreme Court already granted a stay in Utah for the same reason.

Why? Because the Court has merits-based appeals out of Oklahoma, Utah, and Virginia on the docket for their first conference in late September, plus other cases working their way up the appeals chain. Not only is cert. grant a near certainty at this point, but a stay pending consideration of the petition for review is just as likely.

Will 6th Cir. Rule Against Gay Marriage, Create Circuit Split? (Maybe)

Speaking of cases working their way to SCOTUS, the Sixth Circuit still has its mega-batch pending. Many are predicting the first federal appeals court ruling against gay marriage, following three decisions in favor of marriage equality out of the Tenth and Fourth Circuits.

If so, the path looks similar to one recently tread by a state court in Tennessee, the first court to rule against gay marriage since the Supreme Court's Windsor decision in 2013. Judge Russell E. Simmons Jr. held that he was bound by Windsor's deference to state definitions of marriage (and not the accompanying fundamental rights and dignity of persons language that other courts have seized upon).

Simmons also held that he was bound by a 1972 decision, Baker v. Nelson, a one-line order ruling against a challenge to gay marriage. Though many have argued that "doctrinal developments" indicate that the one-line order is no longer valid or binding precedent, Judge Simmons wrote that "it would be more productive for an appellate court whose opinions would have more precedential authority to delve into this analysis."

Does 1-Line Order in Baker v. Nelson (1972) Already Decide the Gay Marriage Issue? (Unlikely)

So, what does that one-liner really mean? Nobody really knows.

The order dismissed an appeal where a couple was challenging Minnesota's gay marriage ban, holding that there was no "substantial federal question" in a state's decision to ban same-sex marriages. Such orders are binding on lower courts considering similar cases, according to The Washington Post, and so one might argue that no federal cases can be brought at all.

During mega-oral arguments in the Sixth Circuit's quintuplet of gay marriage cases, Judge Jeffrey Sutton repeatedly referred to Baker, which has never been explicitly overruled. Judge Simmons did the same in the Tennessee state case, arguing that it was binding.

However, as the Post recounts, many other judges have felt differently. Justice Ruth Bader Ginsburg stated during oral arguments in Hollingsworth v. Perry that she didn't think "we can extract much" from the case, because it predated decisions against criminalizing homosexual intimacy and applying heightened scrutiny to gender-based classifications.

And in the Fourth Circuit decision, the same one that may be stayed by the Court this week, Judge Henry F. Floyd noted, "The Supreme Court's willingness to decide Windsor without mentioning Baker speaks volumes regarding whether Baker remains good law," recounts the Post.

In short? The debate over Baker, like the debate over gay marriage generally, rages on. And only the Supreme Court can settle the matter.

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