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The U.S. Supreme Court will take a look at seven same-sex marriage petitions for review on September 29 as the justices get ready for the new term, according to Lyle Denniston at SCOTUSblog:

In order of their filing at the Court, these are the cases:  Herbert v. Kitchen (Utah), Smith v. Bishop (Oklahoma), Rainey v. Bostic (Virginia), Schaefer v. Bostic (Virginia), McQuigg v. Bostic (Virginia), Bogan v. Baskin (Indiana), and Walker v. Wolf (Wisconsin).

Together, the petitions raise two constitutional questions:  do states have power to refuse to allow same-sex couples to marry, and do states have power to refuse to recognize same-sex marriages performed in other states?  In all of the federal appeals courts’ decisions being challenged in these cases, state marriage bans of one or both of those kinds were struck down under the federal Constitution, either under equal protection or due process guarantees, or both.

As Denniston notes, there’s no telling what if anything they’ll do with the cases, but the Court is moving witih some dispatch, collecting the petitions for consideration early in the term.

Although no one at the Court said this explicitly, the Justices apparently wanted all seven of the petitions so far filed to be ready for the September 29 Conference, which is to be held a week before the new Term formally opens.  The seven petitions present a variety of scenarios with regard to who is appealing and what they are asking.  There is no way for outsiders to know exactly what the Justices will be looking for as they go over the seven filings.

Those petitions almost certainly will not be the last that the Supreme Court sees in the coming Term.  Two other federal appeals courts are poised to rule quite soon, and a third has a case before it but has not yet scheduled a hearing.

The Court, however, need not await the arrival of any other petitions, if it is prepared to take on the controversy itself promptly.

If the Court does grant review of any same-sex marriage cases any time up to the middle of January, a final decision would be expected by next summer.

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Gay marriage 3Federal courts in North Carolina have stayed proceedings in the same-sex marriage cases here while the U.S. Supreme Court decides whether to review the Fourth Circuit’s decision in Bostic v. Schaefer, finding Virginia’s marriage ban unconstitutional.

Five petitions for review of lower court rulings on the issue are now pending before the high court in various stages of readiness — one each from Utah and Oklahoma and three from Virginia (from different parties).

Lyle Deniston at SCOTUSblog has this full rundown of where the cases stand. Here’s his suspected timing:

Following the series of lower-court rulings on same-sex marriage, petitions posing that issue began arriving at the Court on August 5.  In the twenty-four days since then, the other four petitions have come in, so at this stage cases from Oklahoma and Utah are close to being ready for the Justices to consider promptly, as are at least two of the three petitions about Virginia’s ban.

Whether the Court is prepared to step into the controversy at an early point may depend upon whether the Justices are convinced that there is a split on the core issue among lower federal appeals courts.  There is a split, but it depends upon taking into account an appeals court decision years before the Court’s ruling last year in the Windsor case.   Every federal court ruling on the issue since then has resulted in a nullification of state bans, relying on the reasoning in the main Windsor opinion.

The Justices may want to wait to see if a new split is going to develop at the appeals court level.  Many observers now appear to believe, in the wake of a recent hearing before the U.S. Court of Appeals for the Sixth Circuit, that that court may uphold one or more state bans in the four cases it heard.

A split in the circuits may now also be bolstered by today’s ruling from a federal judge in Louisiana, upholding that state’s ban.  Of course that decision — the first from a federal district court to uphold a state ban — would have to pass through the Fifth Circuit first, and likely not in time to make it up to the Supreme Court this term.

Here is the order staying proceedings in Fisher-Borne v. Smith and Gerber v. Cooper.

Here is the order staying proceedings in General Synod of the United Church of Christ v. Cooper.

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Gay rights advocates rally at a recent Moral Monday demonstration.

Equality NC, same-sex couples and families delivered over 10,600 petitions to the Raleigh and regional offices of Governor Pat McCrory this morning, urging him to stop defending the state’s same-sex marriage ban.

“We are proud to deliver this important message alongside families from all across the state who are demanding Gov. McCrory not waste one taxpayer dollar defending what is now an unconstitutional and indefensible law,” said Chris Sgro, Equality NC’s executive director. “In doing so, we join them in asking that our elected officials not only stand with their constituents, but also help North Carolina stand on the right side of history.”

Last month, North Carolina Attorney General Roy Cooper announced his office would no longer defend state laws banning same-sex marriage, after the Fourth Circuit Court of Appeals rejected Virginia’s same-sex marriage ban in Bostic v. Schaeffer.

As the News & Observer points out in Wednesday’s paper, the petition drive by the advocacy organization may press McCrory to discuss his own position on same-sex marriage:

McCrory had asked Cooper to request a stay of North Carolina’s case pending a higher appeal of the Virginia lawsuit, which is now on hold.

But his stance leaves unanswered questions, Equality NC suggests: Does McCrory still personally support the amendment after the Virginia ruling? And will he seek a special outside counsel to uphold the state’s ban now that Cooper won’t defend it?

The questions may hold implications for the 2016 governor’s race when Cooper is expected to challenge McCrory.

McCrory supported North Carolina’s constitutional ban on gay marriage when it was placed on the ballot in May of 2012.

Since then, polls have shown a growing acceptance of this issue with a majority of voters (nationwide and in North Carolina) supporting either marriage or civil unions for same-sex couple.

For more on where things stand in the courts on same-sex marriage, read this piece by Policy Watch’s Courts and Law reporter Sharon McCloskey.

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marriage amendmentThe Fourth Circuit today denied a request by parties defending Virginia’s same-sex marriage ban to stay the court’s ruling in Bostic v. Schaefer pending a petition for review by the U.S. Supreme Court.

On July 28 the court held that the Virginia law was unconstitutional and entered judgement on that date. The ruling is scheduled to go into effect on August 18, 2014.

Michèle B. McQuigg, the  Prince William County Clerk of Circuit Court and a defendant in Bostic, told the court that she intends to file a petition with the U.S. Supreme Court by October 26, 2014, and asked that implementation of the ruling be stayed in the meantime, citing the potential of confusion and inconsistent results:

The absence of a stay will likely produce legal uncertainty and confusion. The Utah marriage case serves as a useful example. In Utah, after the district court struck down the state’s marriage laws, the district court and the Tenth Circuit declined to issue a stay.  As a result, many same-sex couples in Utah obtained marriage licenses pursuant to the district court’s injunction. Days later, however, the Supreme Court stayed the injunction, and Utah’s man-woman marriage laws went back into effect. Thus, the State of Utah now declines to recognize the licenses that were issued to same-sex couples during that interim period.

Same-sex couples who obtained licenses during that period filed a lawsuit in federal court to require the State to recognize those licenses as valid. The district court held that the interim licenses must be recognized, but the Supreme Court again stayed that decision pending appellate resolution. Thus, the validity of those licenses is still in limbo.

For more on the Fourth Circuit’s ruling in Bostic, read here.

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At yesterday’s NC Policy Watch Crucial Conversation luncheon on the future of marriage equality, Chris Brook, the Legal Director of the American Civil Liberties Union of North Carolina, made it pretty clear what he intends to argue in federal court when he next gets the opportunity in the organization’s challenges to North Carolina’s marriage discrimination law. Brook said he’s going to point to the Fourth Circuit Court of Appeals in Richmond (the precedents of which apply to North Carolina), show the judge that court’s decision in the recent Bostic v. Schaefer case and then just sit down.

It’s an obvious strategy — namely, that the ruling striking down Virginia’s discrimination law in Bostic is right on point and there really isn’t much that a North Carolina federal judge can do but abide by it.

This is why Attorney General Cooper made his recent announcement that he would stop wasting North Carolina taxpayers’ money by trying to defend North Carolina’s indefensible law.  It would be a futile and costly gesture — not unlike attempting to defend a law that banned interracial marriage.

Of course, as Sharon McCloskey’s story immediately below makes plain, this patently obvious logic is apparently lost on Senate President Pro Tem Phil Berger and House Speaker Thom Tillis who are, quite remarkably (if one of Berger’s members is to be believed), taking steps to impeach Cooper over his utterly reasonable, constitutional and ethically-bound decision.

By all indications, Berger and Tillis simply want Cooper to tilt at the Bostic windmill and manufacture insipid, sure-fire-loser arguments as is being tried in a few other states. Today, we got a good idea of what some of those arguments would look like when the folks at ThinkProgress published a handy list of The 10 Craziest Arguments Two States Are Using to Defeat Marriage Equality.” This is from the post: Read More