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32 States Urge SCOTUS to Hear Same-Sex Marriage Cases

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By Mark Wilson, Esq. on September 08, 2014 12:40 PM

Seventeen states and Washington, D.C., now allow same-sex couples to get married. In 14 other states, state or federal judges have overturned state-level bans on same-sex marriage. As this blog post is being written, the Ninth Circuit Court of Appeals is hearing oral arguments on same-sex marriage bans in Hawaii, Nevada, and Idaho.

The momentum for this movement came from the Supreme Court's 2013 decision in United States v. Windsor, which struck down a federal ban on same-sex marriage as violative of the Constitution.

Two years later, 32 states on both sides of the issue are petitioning the U.S. Supreme Court to finally rule on the legality of same-sex marriage bans as they pertain to the states. (Even the winners at the Fourth Circuit are urging the Court to take the case.)

Take My Case -- Please

At the petition for a writ of certiorari stage, the petitioner -- in this case, Utah, which has posted a copy of its petition online -- isn't necessarily looking to make a lot of arguments on the merits. Mostly, the petitioner wants to convince the Court (or at least, four members of the Court) that the issue is worthy of its attention because there's a circuit split, or it presents a constitutional question, or it's a contentious issue in the national spotlight.

Central to Utah's argument in favor of granting the petition is that Windsor just punted the issue further down the field. Justice Kennedy was able to get away with Windsor by transforming the civil rights argument into a states' rights one, meaning all that talk about human dignity that he loves so much was just gravy. The ratio decidendi of Windsor really was the states' rights claim; unfortunately, we're now well past the point where such logic can avoid the question everyone's been dying to have answered for over two years: Is it constitutional to prohibit same-sex marriage, or not?

A Jurisdictional Dilemma

One thing that both the Utah petition and the Virginia petition urge is the Court's strict adherence to stare decisis. Same-sex marriage cases could be foreclosed entirely if the Court sticks with Baker v. Nelson, where the Supreme Court dismissed a case holding that denial of a marriage license to same-sex couples because it didn't present a federal question.

Courts finding same-sex marriage unconstitutional easily parried Baker on the ground that it's old and busted. The Seventh Circuit dismissed Baker as a relic of a bygone era: It was decided "42 years ago and the dark ages so far as litigation over discrimination against homosexuals is concerned." In Lawrence v. Texas, the Court was called on to stick to the old rule of Bowers v. Hardwick, which allowed a state law criminalizing private homosexual conduct. Of course, Justice Kennedy declined the offer, saying that stare decisis was not "an inexorable command" and explicitly overruling Bowers, which he said "was not correct when it was decided, and ... is not correct today."

And It's Not Just States

In addition to the states, four religious organizations -- including the Mormon church -- filed amicus briefs with the Court. But these briefs are seeking to get the Court to take a particular case. The religious organizations' brief urges the Court to take the Utah case because it contains a creamy nougat center of self-governance. The Utah same-sex marriage ban was passed by the voters, not the legislature. Consequently, the Utah case would allow the Court to weigh equal protection rights of same-sex couples with the rights of voters to decide state law for themselves. It would also require Justice Kennedy to have an argument with himself: "dignity in the community equal with all other marriages" is important -- but, then again, "the definition and regulation of marriage ... has been treated as being within the authority and realm of the separate States."

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