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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.

Commentary

In case you missed it, Judge Richard Posner of the Seventh Circuit Court of Appeals — a conservative Reagan appointee who has frequently vexed progressive lawyers down through the years — said the following yesterday in what Esquire’s Charles Pierce aptly describes as (among other amusing characterizations) a “remarkably plain-spoken” ruling in favor of marriage equality:

“Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”

Click here to read the court’s ruling striking down Indiana and Wisconsin’s bans on same-sex marriage. Posner’s quote can be found on pages 19 and 20.

News

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.

Commentary

Doesn’t it seem that the nation’s progress and momentum in implementing the Affordable Care Act (and, in particular, Medicaid expansion) is starting to resemble the slow but steady (and inevitable) progress on marriage equality?

Talking Points Memo has the story today of the latest conservative state to be talking openly of a plan to expand Medicaid — it’s our neighbor to the west Tennessee:

In a growing trend, Tennessee looks like it will be the next Republican-led state to move toward expanding Medicaid under Obamacare.

Right now, of course, North Carolina is in the “no” camp on both issues. The bet here, however, is that this won’t be the case come the 2016 election.

Click here and here to see two maps that reveal the trends.

News
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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.