Utah, Indiana, Heightened Scrutiny and Next Steps: Is Marriage Heading to the Supreme Court?


UtahOne year this week, the Supreme Court brought marriage equality back to California when it ended the Prop 8 case. It also declared Section 3 of the Defense of Marriage Act (DOMA) unconstitutional and, thereby, ushered in a year of unbroken marriage equality victories indebted to United States v. Windsor. The Supreme Court was equally as active today, deciding, for example, that police must get a warrant before searching cell phones upon arrest and that the Aereo streaming television service is illegal under the Copyright Act.

Unless you count the impending Hobby Lobby case, a challenge to Obamacare's requirement that employers offer their employees health plans that cover contraceptives, which raises the highly relevant question of how big of a donut hole will be carved out by so-called "religious exemptions" to equality legislation, our right to marry did not have a date at the Supreme Court this week.

But much progress was made in the lower courts.

The Ninth Circuit has refused to rehear the case in which it held that antigay discrimination merits heightened scrutiny. This means that pretty much any gay rights case out of the most populous circuit in the country -- stretching from Montana to Arizona and from Nevada to Alaska and Hawaii -- will more than likely end with a pro-equality ruling. Heightened scrutiny makes it nearly impossible to justify discrimination, which brings us closer to our goal of universal equality.

The Tenth Circuit affirmed District Judge Shelby's ruling that Utah's ban on same-sex marriage is unconstitutional. The 2-1 decision marks the first time a federal appellate court has ruled on a marriage ban in the post-DOMA world. The ruling, which included a stay pending Supreme Court review, sets the stage for several potential next steps, all of which may culminate at the Supreme Court.

And a district court judge in Indiana ruled that state's ban on same-sex marriage is unconstitutional. And there was no stay attached to the decision, so for now, gay couples can marry -- and are marrying -- already.

Judge Richard Young of Indiana was right. He remarked how he had never seen anything like this before: In the span of one year, marriage equality went from a handful of states with a loud opposition to victory after victory after victory since the Supreme Court decided the DOMA case. 

In the coming days, I will summarize and analyze these decisions (and other legal developments affecting the LGBT community, but for now, let's discuss what happens next.


TenthcircuitThe most pressing question is what happens now that the Tenth Circuit has affirmed that Utah's ban on same-sex marriage is unconstitutional?

First, gay couples cannot marry just yet. A stay, which was already put in place after a great number of couples had already married, is attached to the appellate court's decision. The stay explicitly mentions that the ruling should be stayed pending Supreme Court review.

Second, there are several possible steps forward. The ultra-conservative leaders of Utah are unlikely to concede the justice of marriage equality and accept gay marriage in the state (as the embattled Republican governor did in Pennsylvania). Assuming they want to pursue the case, the state could ask for the Tenth Circuit to rehear the case en banc. That means that instead of just 3 judges deciding the issue for Utah and the Tenth Circuit, the same questions would go to the entire Tenth Circuit. If the Circuit grants a rehearing, which is not that likely, they could ask for additional briefing or decide the case on the current briefs. That process could take several months and, at least, into next fall. Or, the state defendants could appeal directly to the Supreme Court. Because we are almost at the end of the current Supreme Court term and because the Court does not meet to discuss certiorari petitions over the summer, we would not hear anything about whether the Court accepts the case and when the hearing gets scheduled until early next fall. 

SupremesThis brings up the related question: Does the Supreme Court have to take this case?

No. The Court knows what's happening in the lower courts. The justices know that various cases are winding their way through the lower courts from all corners of the country and even if state defendants do decide to appeal up to the Supreme Court, the Court may elect to do nothing and wait to see what happens with all the other cases. The Court has in the past waited for several cases to come up for review, taken one or several, and decided all issues under one umbrella. This is sort of what happened when the Court granted a hearing in the Windsor case rather than any of the various other DOMA cases.

It is not even an absolute certainty that the Supreme Court will ever take a marriage equality case. Granted, it is highly likely that marriage equality is heading back to the Supreme Court, whether it is from the Tenth, the Fourth, or whatever other circuit. However, it is not certain. The Tenth Circuit has affirmed the unconstitutionality of Utah's ban. The Fourth Circuit may follow suit in short order. Michigan's ban is up for review, as is Texas's. Cases are lower down in the system elsewhere. But, eventually, every appellate court could have a marriage equality case before it. If every appellate court strikes down the gay marriage bans, and given our post-Windsor streak, that seems possible, there would be no legal question demanding the Supreme Court's answer.

Of course the Supreme Court may take a marriage case anyway. But for all our talk of needing the Supreme Court to give us a nationwide right to marry, our post-Windsor winning streak may make the Supreme Court unnecessary. 

Over the next few days and weeks, I will return to these decisions and discuss the details. Stay tuned!


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Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.