Marriage Equality's Race Back to the Supreme Court

A case challenging Virginia's ban on same-sex marriage reached the U.S. Supreme Court Friday, marking the third marriage equality case now before the nation's highest court.

Virginia Attorney General Mark Herring, a Democrat, filed a petition for writ of certiorari calling on the Supreme Court to hear the case and answer the question it raises: "Whether Virginia violates the Due Process and Equal Protection Clauses by denying the right of marriage to same-sex couples and by refusing to recognize same-sex marriages lawfully performed outside of Virginia."

According to the petition, the case provides an opportunity for the Supreme Court justices to answer questions left unresolved by the court's decisions in June 2013 striking down Section 3 of the federal Defense of Marriage Act, defining marriage as between a man and a woman, and allowing a lower court's ruling striking down California's ban on same-sex marriage to stand.

"Many brave men and women have fought for years for the constitutional guarantee of marriage equality, and now, we are almost there," Herring said in a statement. "It is time to discard these discriminatory bans and to recognize the humanity, dignity, and rights of gay and lesbian Americans seeking to forge life-long bonds. I believe this case will prove compelling for the Court because of the stringent, discriminatory nature of Virginia's marriage ban, the range of critical questions presented, the clear legal standing of the parties, and Virginia's historic role in 1967?s Loving case ending bans on interracial marriage. Virginia got that case wrong. Now, we have a chance to get it right, and to help extend to all Americans the right to marry the person they love."

On July 28 the 4th Circuit Court of Appeals upheld a lower court's ruling finding Virginia law prohibiting same-sex marriage and recognition of same-sex marriages performed in other states. Although one of the defendants in the case announced she would appeal to the Supreme Court, Herring's office said last week that he too would petition the Supreme Court to ensure the justices consider the case at their September conference.

The petition filed by Herring's office rejects calls for the Supreme Court to allow the political debate over same-sex marriage to continue to play out in the states, comparing such arguments to those made in 1967 in Loving v. Virginia, the case that led the Supreme Court to strike down bans on interracial marriage.

"Although the 'public is currently engaged in an active political debate over whether same sex couples should be allowed to marry,'" the petition states, quoting the opinion by Chief Justice John Roberts in the Proposition 8 case, "the Court should not entertain pleas to stand on the sidelines to watch. The same plea for judicial restraint was heard in 1967 from a previous Attorney General of Virginia, who said that striking down Virginia's law banning interracial marriage would be 'judicial legislation in the rawest sense of that term.' He urged the Court to leave it to the 'exclusive province' of the States to permit or allow 'such alliances.' And perhaps if the Court had waited long enough, Virginia would have eventually repealed its interracial-marriage ban; 14 other States had done so by the time Loving was decided."

Bostic v. Schaefer was originally filed on behalf of two same-sex couples in July 2013 by the legal team that challenged California's Proposition 8, including the American Foundation for Equal Rights (AFER) along with attorneys Ted Olson and David Boies. The American Civil Liberties Union (ACLU) and Lambda Legal joined the case in March on behalf of all of Virginia's same-sex couples.

The Virginia case marks the third marriage equality case to reach the Supreme Court this week, illustrating an emerging race among attorneys on both sides of the issue to see that their respective same-sex marriage cases reach the Supreme Court first.

A case challenging Oklahoma's ban on same-sex marriage reached the U.S. Supreme Court Wednesday, after lawyers for Sally Howe Smith, a court clerk in Tulsa County, filed the petition for a writ of certiorari. The motion comes after the 10th Circuit Court of Appeals ruled 2-1 last month to uphold a lower court's January ruling finding Oklahoma's ban on same-sex marriage unconstitutional. The case was first filed by two same-sex couples in November 2004 after 75 percent of Oklahoma voters approved a constitutional amendment defining marriage as between a man and a woman.

One day prior, Utah Attorney General Sean Reyes (R) asked the high court to hear a case challenging Utah's ban on same-sex marriage. In June the 10th Circuit Court of Appeals ruled 2-1 to uphold a lower court's ruling that Utah's ban on same-sex marriage is unconstitutional. On December 20 U.S District Court Judge Robert J. Shelby found Utah's same-sex marriage ban in violation of the U.S. Constitution, leading more than 1,000 same-sex couples to marry before the U.S. Supreme Court interjected and halted marriages pending appeal.

In an unusual move, plaintiffs in the Utah case announced Thursday that they too would urge the Supreme Court to take up the case (generally winners do not appeal).

"We agree with the State of Utah that Supreme Court must resolve this critical issue for the nation," said Kate Kendell, executive director of the National Center for Lesbian Rights, which is co-counsel in the case. "With so many cases pending across the country, it is time for same-sex couples to enjoy the full promise of equality and security for themselves and their families. The era of shame, stigma, indignity and harm is over. We will be joining the State of Utah in asking the Court to hear the Utah case and bring finality and certainty to this."

As first reported by The New York Times, President Barack Obama's former acting U.S. Solicitor General Neal Katyal has also signed on as co-counsel for the Utah plaintiffs. "There is no legal issue more important, or that cries out for Supreme Court review more urgently, than this one," Katyal said in a statement to Metro Weekly.

Although the Supreme Court justices have no obligation to take up either of the three cases now before them - and should they decline to do so the lower court decision would stand - marriage-equality advocates appear increasingly confident a national resolution could come sooner rather than later.

"Based on the unprecedented momentum in the courts, where the supermajority of Americans are on marriage, and the clear harms of denial in too much of the country, the argument for the Court taking a case this year and deciding next year is powerful," said Marc Solomon, national campaign director of Freedom to Marry. "Of course, the Supreme Court is difficult to predict but there's no question the country is ready for national resolution."

And more federal appeals court rulings are expected to reach the Supreme Court in coming months. On Wednesday, the 6th Circuit Court of Appeals in Cincinnati heard oral arguments in six cases challenging same-sex marriage bans in Kentucky, Michigan, Ohio and Tennessee. The 7th Circuit Court of Appeals is expected to consider the constitutionality of Wisconsin's and Indiana's respective same-sex marriage bans on Aug. 26, and the 9th Circuit Court of Appeals will consider Idaho's and Nevada's bans on Sept. 8. The 5th Circuit Court of Appeals has not yet set a date for considering a case challenging Texas law prohibiting same-sex marriage.

In his Friday petition filed with the Supreme Court, Herring noted the rapid rate at which this issue has progressed since the Supreme Court's 2003 decision striking down anti-sodomy laws in Lawrence v. Texas, but insisted that should be no reason to delay extending full equality to same-sex couples.

"It may seem that this issue has moved rapidly since Lawrence held that our Constitution prevents States from criminalizing the intimate relations of gay Americans," the petition states. "But how much longer must these citizens and their children wait to realize the promise of equal justice under law?"