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Kagan Officiates Same-Sex Marriage; Lawyers Push to Be 'The Case'

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By William Peacock, Esq. on September 22, 2014 1:20 PM

We've got a double-dose of Supreme Court-related news today: A Supreme Court justice officiated a same-sex marriage over the weekend. And though Justice Elena Kagan isn't the first current or retired justice to do so, it's sure to draw some complaints and questions about bias, with the Court set to hear same-sex marriage cases at some point this term.

Speaking of same-sex marriage, in one week, the Supreme Court will consider the handful of petitions floating in the cert. pool at its first conference of the term. The New York Times reports that lawyers in the cases are jockeying for position in their briefs, hoping that their case becomes the case.

Seven more days folks: Seven days until we get to cert. petitions, oral arguments, and Court decisions.

Kagan Officiates Former Clerk's Wedding

On Sunday, Justice Elena Kagan officiated the same-sex marriage of her former clerk, Mitchell Reich, and his husband Patrick Pearsall in Chevy Chase, Maryland, reports The Associated Press.

She's not the first to do so. Justice Ruth Bader Ginsburg and retired Justice Sandra Day O'Connor have officiated multiple same-sex marriages. Ginsburg recently presided over the wedding of Washington, D.C., theater director Molly Smith and previously presided over two others after the Court's decisions in Windsor and Perry.

This will undoubtedly raise some concerns among Court-watchers about bias, but to that, we'd say two things: First, was there ever any doubt about where Kagan and Ginsburg were leaning on the issue of gay marriage? And more importantly, if gay marriage bans have any hope, legally speaking, it's in the "leave it to the states" mantra of Windsor. Justice Kagan was doing exactly that: officiating a marriage that was perfectly legal under state law.

Everyone Wants to Make History

Kagan and Ginsburg's leanings are clear. In fact, you can tally the four "reliable liberals" in the pro-SSM column, along with Justice Anthony Kennedy, the author of Windsor. That's five votes, and that's why most are predicting that when the Court does take up a same-sex marriage case, it'll end with a verdict of equality.

So, which case will it be? The Times notes that lawyers for all of the cases currently in the cert. pool are jockeying for position as the case, the gay marriage equivalent of Loving v. Virginia, the case that will be cited by law students and lawyers for decades, if not centuries.

Lawyers for the Virginia same-sex marriage plaintiffs note that their case is a class action that covers both bans on in-state marriages as well as the state's refusal to recognize of out-of-state marriages. The broadness of the case would allow the Court to avoid a piecemeal approach that would undoubtedly lead to more litigation down the line.

The Utah case, however, came first and has a stronger procedural basis. In Virginia, state officials are siding with the plaintiffs, while county clerks are defending the ban. In Utah, the state itself is defending its ban.

And then there's the most unlikeliest of scenarios: The Court could punt on all of the cases until a circuit rules against marriage equality. So far, in the federal appeals courts, gay marriage is undefeated. Last week, Justice Ginsburg noted that a holding against gay marriage by the Sixth Circuit, which is currently considering a batch of cases and might be the most likely to make such a ruling, could up the urgency factor and force a cert. grant.

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