Suspense mounted yesterday as the U.S. Supreme Court contemplated whether to stay the Fourth Circuit’s endorsement of marriage equality in Virginia or instead allow clerks there to begin issuing licenses to same-sex couples this morning.
But alas, as most legal experts and court watchers expected, the Court took the cautious route, ruling that at least pending the filing of a full petition for review, the status quo will continue in Virginia – meaning no same-sex marriages yet.
Disappointment followed among the ranks of marriage equality proponents, but those groups are heartened by the pressure that’s building for the nation’s highest court to address, once and for all, the legality of same-sex marriage bans across the country.
At least three petitions for review will be before the justices this fall, and more are on the way from lower courts across the country.
Here’s a quick look at the rapidly growing landscape of marriage equality cases pending in the federal courts.
In the Supreme Court
The Virginia case, Bostic v. Schaefer, is one of three cases now jockeying for position before the court.
State officials there filed their own petition for review, but it was the county clerk for Prince William County, Virginia, Michele McQuigg, who asked for the stay.
Two decisions out of the Tenth Circuit overturning state marriage bans – one out of Utah in Kitchen v. Herbert and another out of Oklahoma in Bishop v. Smith – are also pending before the Supreme Court.
Both the Virginia case and the Utah case have briefing schedules that will place the requests before the court for consideration by fall.
In the Utah case, state officials as well as same-sex couples are urging the court to address the issue head-on.
As Lyle Deniston has noted at SCOTUSblog, defenders of state marriage bans have argued that the high court should now step in because a split on the issue in the federal appellate courts already exists. Juxtaposed against the recent Fourth and Tenth Circuit decisions overturning bans, they contend, is a 2006 Eighth Circuit decision upholding a Nebraska ban.
But as Deniston adds, same-sex couples in one filing in the Virginia case dispute that claim of a conflict:
[They argue] that the Eighth Circuit’s decision upholding a ban in Nebraska came several years before the Supreme Court’s decision last year in United States v. Windsor. While that decision did not rule on the authority of states to prohibit same-sex marriage, its reasoning has been widely used since then by lower courts in nullifying such bans. The Windsor decision struck down a key part of the federal Defense of Marriage Act that denied federal marital benefits to same-sex couples who already were legally married under state laws.
In the pipeline
The group Freedom to Marry notes on its website that there’s been 79 cases filed in 32 states challenging same-sex marriage bans, with 37 “wins” – overturning bans – thus far.
Here’s what’s percolating in the federal courts in addition to the decisions out of the Fourth and Tenth Circuits:
Fifth Circuit (covers Louisiana, Mississippi and Texas): In February 2014, a federal judge in Texas ruled in DeLeon v. Perry that same-sex marriage bans there were unconstitutional, but stayed his ruling pending appeal by the state to the Fifth Circuit, so marriages did not take place. The court has not yet scheduled argument.
Sixth Circuit (covers Kentucky, Michigan, Ohio, and Tennessee): On August 6, the court heard six different cases in which, in each instance, a lower court had ruled in favor of marriage for same-sex couples.
Seventh Circuit (covers Illinois, Indiana, and Wisconsin): On August 26, 2014, the court will hear cases from two states – Indiana’s consolidated trio of marriage cases (Baskin v. Zoeller, Lee v. Pence and Midori Fujii v. State of Indiana) and Wisconsin’s Walker v. Wolf. Lower courts have ruled in each of those cases that same-sex marriage bans are unconstitutional.
Ninth Circuit (covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington): On September 8, the court will hear two cases – Nevada’s Sevcik v. Sandoval and Idaho’s Latta v. Otter.