The Supreme Court Wednesday gave the clearest signal yet it is ready to wade once again into the legal war over gay marriage, formally adding a slew of gay marriage cases to the justices’ agenda for their closed-door conference on Sept. 29.
Seven same-sex marriage cases from five states met the high court’s Wednesday filing deadline, which means the justices could take up one or more of the cases in its 2014-2015 term, which formally starts Monday, Oct. 6.
The petitions from Virginia, Indiana, Oklahoma, Utah and Wisconsin are expected to be presented to justices at the conference at the end of the month.
The Supreme Court memorably last tackled the issue in June 2013, striking down a federal law recognizing only traditional man-woman unions and seeming to invite the states to decide their policies of gay marriage individually. But since then, gay marriage advocates have won a series of battles to overturn legislative and voter-approved bans on same-sex marriages as unconstitutional, citing in part the legal logic of the Supreme Court decisions.
The lower courts remain divided, however, with the Chicago-based 7th U.S. Circuit Court of Appeals striking down prohibitions from Indiana and Wisconsin just last week.
Both sides will be watching closely to see which — if any — of the state-level petitions the Supreme Court agrees to hear. Some state officials are asking for confirmation that they can continue their traditional marriage laws, while gay plaintiffs are asking the court to essentially force states to permit gay marriage based on their Constitutional rights to due process and equal protection.
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The cases on the September 29 agenda are from Utah, Oklahoma, Indiana, Wisconsin and three cases from Virginia. All five of the states have seen their traditional laws refusing to sanction gay marriage struck down by district and appellate courts.
Cases are accepted when four justices agree to do so; there is no requirement that the justices immediately act on the requests for review.
The justices could also choose to delay action until January and still issue a decision by late June.
The clamor for the Supreme Court to take up the gay marriage issue has been growing louder since June 2013, when the high court ruled that a part of the 1996 Defense of Marriage Act was unconstitutional. That law blocked the federal government from recognizing legal gay marriages from other jurisdictions for most federal programs
Gay rights groups argue that if DOMA is illegal, so are state-level anti-gay marriage laws.
State officials, however, say that states have the rights to set their domestic relations laws, and even the Windsor ruling pointed to giving states the right to decide who can marry.
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“My responsibility is to defend the state constitution and its amendments as Utah citizens have enacted them,” said Utah Attorney General Sean Reyes, a Republican, when that state filed its writ of certiorari with the Supreme Court. “All Utah citizens will benefit when the Supreme Court provides clear finality on the important issue of state authority to define marriage.”
In Virginia, an official with the group that brought one of the gay marriage challenges there also urged the high court to take up the issue.
“Gay and lesbian couples in Virginia should not have to wait another day to enjoy their right to marry,” said Adam Umhoefer, executive director of American Foundation for Equal Rights.
The current group of gay marriage cases include rulings from the 4th, 7th and 10th Circuit Courts of Appeal, which all ruled for gay marriage, and struck down state man-woman marriages in states around the country.
Rulings are expected in the near future from the 6th and 9th Circuits, which also affect Midwestern and Western states.
Oral arguments are also expected to be heard soon by the 5th Circuit Court of Appeals in cases from Texas and Louisiana. The latter case is distinctive because it marks the first ruling in recent months where a federal judge upheld a state’s traditional-marriage law.
Currently, 19 states and the District permit gay marriage.
• Cheryl Wetzstein can be reached at cwetzstein@washingtontimes.com.
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