UPDATED 3:55 p.m. Friday: Those hoping the U.S. Supreme Court was going to finally make a move on gay marriage were heading for a letdown on Friday. The Supremes held their Friday conference but they didn't issue any orders or grant review of any of the five pending cases regarding the state power to ban gay marriage, according to SCOTUSblog.
This wasn't by any means the final word, or lack thereof, on the subject, but the clock is ticking on the question of whether they'll get into the issue during this term. If the Supreme Court is going to agree to look into the issue this term they'll have to grant review of one of the five pending cases before the end of the month to allow for the time to do all the legal legwork and filing required to, you know, have a case heard by the highest court in the nation. The court's next chance to issue an order comes at 9:30 a.m. Monday when they will release a long list of actions on new cases. If none of the gay marriage cases appear before the court then, the cases have most likely been rescheduled for next week's Friday conference, SCOTUSblog reports.
Meanwhile, state Rep. Cecil Bell filed a honey of a bill, House Bill 623, with the Texas Legislature this week. If passed, the bill will amend the Texas Family Code to prevent any taxpayer funds to going toward gay marriage. It will also bar state employees from being paid if they recognize, grant or enforce marriage licenses for gay couples. As if that weren't enough, HB623 would also require Texas courts to dismiss challenges to the law and award lawyer fees to the defendant. Who knows if this or any of the other handful of anti-gay marriage-type laws will actually get through the Lege but it's yet another sign that Texas lawmakers, in typical and exasperating Texas fashion, looked around, saw the way the wind was blowing and immediately started sprinting the opposite direction.
After a long walk down the legal aisle, the U.S. Fifth Court of Appeals is finally hearing oral arguments on cases challenging gay marriage bans in Texas and Louisiana on Friday morning. However, the U.S. Supreme Court is also holding a closed-door meeting today that may well make the whole shindig in New Orleans moot.
The Supreme Court is sitting down to once again consider taking up the matter of same-sex marriage bans. They currently have five cases pending concerning gay marriage bans in Michigan, Kentucky, Tennessee, Ohio and Louisiana and if the Nine adds any of these cases to its docket for this term the Fifth's case would most likely be put on hold, as the Times-Picayune reported.
In a way, it would make sense to see the final decision end up in the hands of the Supreme Court -- and a lot of the expert-types expect that's going to be what ends up happening ultimately anyway, no matter what the Fifth decides --since the Supremes were the ones who really got the ball rolling on the gay marriage issue with a crucial decision in the case of United States v. Windsor back in 2013.
The case was brought by a woman, Edith Windsor, who had inherited her partner's estate after she died. However, because her marriage wasn't legally recognized she was being forced to pay more than $300,000 in estate taxes (married people get a loophole for this particular tax after a spouse dies) under section three of the federal Defense of Marriage Act (aka DOMA). Windsor sued and took the case all the way to the Supremes. And that's where things got really interesting.
The Supreme Court isn't united on gay rights. In fact, the justices tend to split 5-4 on the subject (as they do on the many subjects they don't agree on) with Justice Anthony Kennedy often acting as the swing vote. Because of that, Kennedy gets to be the deciding factor on a lot of cases, and while he's technically a moderate, it's accurate to say he tends to lean to the right side of the court, often voting lockstep with Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito. Meanwhile Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan generally hang out on the left side of the ideological school yard.
However, Kennedy generally goes with the liberal side of the court when it comes to gay rights. In 2013 he was most likely the deciding vote in the 5-4 decision in favor of Windsor, meaning he was the one who ultimately struck down section three of DOMA, and turned the tide in favor of gay marriage. Kennedy wrote the decision and made the majority opinion on the issue pretty clear: "The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity."
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To translate, the Supreme Court ruling handed the issue over to the states. And the shift toward states recognizing gay marriage has been a fast one. So many states had already recognized same-sex marriage by last fall that many people were betting the Supreme Court would take up one of the seven cases then pending before the court's fall term. But that didn't happen. The Supremes held a meeting -- just like the one they're holding today -- but at that time they chose not to weigh in on the issue. And the thing is, this actually allowed states to continue recognizing gay marriages.
While there were only 19 states recognizing gay marriage then, the entire thing has snowballed since then, as Reuters pointed out. Right now 36 states have recognized same-sex marriage in areas that hold about 70 percent of the nation's population. Besides that, the Supreme Court usually doesn't like to really dig into an issue until there is clear disagreement among the lower courts about the law, but back in November the Sixth Circuit Court of Appeals gave the Supremes that kernel of disagreement when it upheld a gay marriage ban. (This is where we cue the dramatic music, because that means there's finally some real pressure on the Nine to make things clear one way or the other.)
So while a trio of judges -- Judge James Graves Jr., a President Barack Obama appointee, and Judges Jerry E. Smith and Patrick Higgenbotham, both appointed by President Ronald Reagan -- from the Fifth is wrestling with the gay marriage bans in Texas, Louisiana and Mississippi this morning, the odds are good they'll sit on the issue if the Supreme Court finally agrees to take it on. And if the high court takes it on, it's worth noting that Kennedy has ruled in favor of gay rights every time its come before the court in recent years and he's written every recent majority opinion on the subject. There's never any sure way of telling how the justices will rule, but that's still a pretty strong indicator.
If the Supreme Court does decide to get into it, they could announce the addition to their docket by Friday afternoon. From there, their decisions usually come near the end of term in June. If they once again decline to get involved, the decision will fall to the Fifth, at least for now.