The U.S. Supreme Court released the cases to be added to their docket for the 2014-2015 term that begins Monday, October 6. Some of the appeals to be considered include religious discrimination in the workplace and fair housing.
What the list does not include is same sex marriage.
The high court met in private September 29 to discuss several of the cases submitted to them for consideration. Indiana’s same sex marriage cases were among several to come out of the Courts of Appeal around the country.
Karen Celestino-Horesman represents the plaintiffs in Lee vs. Abbott et. al, one of the three cases combined into one in Indiana. Horseman says there are numerous speculations as to why the Supreme Court opted to wait for the gay marriage issue.
“The most publicized reason for the delay is that given by Justice Ruth Bader-Ginsburg, who recently said the court would likely move more quickly to hear the issue if there was an opinion from one of the Circuit Court of Appeals that broke ranks,” says Horesman, “To date, all three of the federal appellate courts to address the issue have found the same sex marriage bans to be unconstitutional. Court watchers consider the Sixth Circuit [Court] of Appeals to be more conservative and its opinion may issue any day now, so speculation is that the court is waiting to see how the Sixth Circuit rules.”
The Supreme Court has also instituted an informal policy of sending cases through conference twice for consideration before granting cert. The September 29 conference was the first time any of the same sex marriage cases had been discussed during conference. Horseman speculates that same sex marriage could be addressed when the court meets in conference again October 10. If same sex marriage is up for consideration at that time, we could hear of the court’s decision to hear one or more of the seven cases as early as October 14.
Horseman says another possibility is the justices are taking their sweet time to consider such a controversial issue that has taken the entire nation by storm. It takes four of the nine justices to agree to grant cert and hear a case. It takes five of the nine Justices to reverse or affirm a decision once a case is heard.
“As the court watchers have made clear, every case brings something a little different to the table,” says Horesman. “This could also take time for the simple reason that each of the justices may have their own view as to which case or cases would be best for purposes of cert and a consensus among four of them must be reached.”
The speculation spin could go around and around about why same sex marriage wasn’t granted a hearing before the nation’s highest court Thursday morning. In reality, the U.S. Supreme Court can do what it wants when it wants to do it.
“The court has until the middle of January to decide if it wants to hear the same sex marriage cases and in turn, it then has until the term ends at the end of June 2015 to issue its opinion,” says Horesman.
The best scenario for the hundreds of same sex couples in Indiana and other states who are waiting to see if they can live in recognized wedded bliss is for the Supreme Court to deny cert in the various cases. That would mean the decisions reached in the Courts of Appeal would stand, Indiana’s law would be unconstitutional and same sex marriage would exist. It is a very unlikely scenario, but it still remains a possibility.
In the meantime, same sex couples remain in limbo and Indiana’s law banning new marriages and recognition of existing marriages remains in tact.