Neither journalists nor lawyers are particularly known for their math skills, but the ciphering is underway as we await word on whether the Supreme Court will determine this term that there is a constitutional right for same-sex couples to marry.
As a near-inviolable rule, the justices must take a case before the end of January in order to set oral arguments and render a decision by the end of their term in June. Usually, only an emergency breaks the pattern.
There is no shortage of cases teed up for the court to render the ultimate decision on whether it is up to states to decide the definition of marriage and recognition of unions performed elsewhere, or if marriage is a fundamental right that must be extended to gay as well as straight couples.
Kyle Duncan, a Washington lawyer representing Louisiana in its so-far successful defense of laws licensing and recognizing only opposite-sex marriages, said there is a remarkable effort on both sides of the issue to get the matter to the justices now.
If briefing is concluded quickly — and it appears it will be — there should be no doubt that the justices could consider the cases at their private conferences scheduled for Jan. 9 and 16.
“The court has a significant amount of latitude,” Duncan said. “I assume that if the justices wanted to hear the cases this [term], they could.”
There is remarkable agreement among opponents and supporters of same-sex marriage that the court should act now.
Ohio, for instance, told the Supreme Court in its filing last week that it believes it has the right to withhold recognition of same-sex marriages performed in other states, as an appeals court has ruled.
But if it is wrong, the state’s lawyers wrote, “the present status quo is unfair to gays and lesbians living in the states [that] retain marriage’s traditional definition.” They added: “The country deserves a nationwide answer to the question — one way or the other.”
From the other side, Evan Wolfson, president of the group Freedom to Marry, said there should be nothing precluding the justices “from hearing this on time, which from our perspective is as soon as possible.”
Does all this sound familiar?
The same arguments were made this fall, when the court also had the chance to review lower court rulings and decide the constitutional question left unanswered by its 2013 decision striking down part of the federal Defense of Marriage Act.
The court, without comment, passed. The practical effect was a vast expansion of same-sex marriage beyond the jurisdictions where voters and legislators had approved such unions. Taken together with the states covered by regional appeals courts that have decided state bans are unconstitutional, same-sex couples in 35 states and the District of Columbia may wed.
The game-changer was the 2 to 1 decision in November by a panel of the U.S. Court of Appeals for the 6th Circuit. It upheld marriage bans in Michigan and Kentucky, and recognition bans in Ohio and Tennessee.
How long will the court tolerate different on-the-ground realities dictated by the regional appeals courts? If the justices don’t accept the issue in January, the ultimate constitutional question would likely not be settled until 2016.
From a political viewpoint, advocacy for same-sex marriage is a foregone conclusion for Democrats running that year. Republicans face much more of a generational divide within their ranks, and they might be just as happy to have the court settle the issue before their primaries begin.
It is possible that the Supreme Court will have to confront one more decision about same-sex marriage before mid-January.
A federal judge has struck down Florida’s ban, and a panel of the U.S. Court of Appeals for the 11th Circuit has denied the state’s request for a stay. Even though the appeals court has not made a decision of the merits of striking the ban, marriages in the state are set to commence Jan. 6.
Florida Attorney General Pam Bondi (R) is considering whether to ask the Supreme Court to step in.
Speculation about change at the Supreme Court is constant, especially with four of the justices — Ruth Bader Ginsburg, Antonin Scalia, Anthony M. Kennedy and Stephen G. Breyer — age 76 and over.
Ginsburg’s latest medical emergency — the 81-year-old had a heart stent procedure just before Thanksgiving — renewed comment about the justices’ health and age.
But it was interesting in a Politico story on the subject to notice the longevity of those politicians in the story who work across the street from the court.
Interviewed were Sen. John McCain (R-Ariz.), 78, who says he is most likely running for another six-year term in 2016, as well as Sen. Barbara Boxer (D-Calif.), 74, who hasn’t yet made a decision.
Sen. Dianne Feinstein (D-Calif.), who like Ginsburg was born in 1933, is in the national spotlight because of the release of the Senate Intelligence Committee’s report on CIA interrogation techniques. Her term ends in 2018.
And if there is a new nominee, the chairman of the Senate Judiciary Committee doing the vetting will be Charles Grassley (R-Iowa). He has decided to run in 2016, and a win would keep him in office until age 89.
Ginsburg, for her part, has been making the rounds of holiday parties and telling folks that she has been cleared to resume normal activities — which in her case includes the push-ups she has said are part of her fitness regime.