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Supreme Court could decide in early October whether it will hear a marriage case this term

LGBT Legal Cases Marriage equality Marriage Equality Trials

The U.S. Supreme Court. Attribution: Jeff Kubina
The U.S. Supreme Court. Attribution: Jeff Kubina
The United States Supreme Court will take up petitions in several same-sex marriage cases as early as October 10. The Court has been asked to review cases from Utah, Oklahoma, and Virginia in its term that begins in October of this year.

October 10 is the Court’s second opportunity to decide whether to hear marriage cases; the first, September 29, is the Court’s so-called “long conference” in which it discusses petitions that have been waiting all summer. The Court’s next conferences after October 10 will be held October 17 and 31.

State officials in Utah filed their petition on August 5, while Tulsa County Court Clerk Sally Howe Smith filed her petition in the Oklahoma case on August 6. Two days later, on August 8, Virginia Attorney General Mark Herring, who supports marriage equality, asked the Court to hear the challenge to Virginia’s ban.

Under the Court’s rules, the response brief is due 30 days after the filing of the petition, and the case is distributed for conference 14 days after that. The rules suggest that a reply to the response can be filed, but its filing wouldn’t affect the timing of the conference.

This would mean the response in Utah is due on September 4, the response to the petition in the Oklahoma case is due September 5, and the response to the petition in the Virginia case is due on September 711.

Given the rule that a case can be distributed 14 days after the response, the cases would be ready for distribution by the October 10 conference. The Utah case would be ready for distribution on September 18. The Oklahoma case would be ready on the 20th, and Virginia’s on the 22nd.

This, of course, assumes the responses are filed on time and no extensions are sought.

Cases that are ready for distribution between September 17 and September 25 will be distributed for the October 10 conference, according to the October ’14 term case distribution list.

The Court is under no obligation to take any action following the conference. The Justices can hold the petition if they want to do that, or they can decide the cases should be redistributed for consideration at a later conference. The Court could, of course, simply deny one or more of the petitions outright, which would leave the appeals court decision in place as binding precedent in that circuit.

Last term, the Court granted cases after they had been relisted once, though they denied review in many cases without relisting even once.

As we’ve noted before, it takes four votes to grant review. In addition:

If the Court accepts a petition, the ultimate outcome would be essentially on hold until next year. There is no timeline for the Court to make a decision on whether to hear a case. They can essentially hold onto a petition as long as they want. It doesn’t seem likely they’d hold petitions in all of these marriage cases, though.

The Court’s term begins in October and ends by July 4, by tradition. October’s calendar has already been released, and SCOTUSBlog has reported previously that enough cases have been accepted to fill out the calendar until December. But they’ve also noted several times that there is still a chance the Court will take up a marriage case. April is usually the last month for arguments; after that, the remaining opinions are worked on until the end of June.

Arguments in the Prop 8 and DOMA cases took place in late March.

A decision in a marriage case, if the Court grants review in a case for the October ’14 term, would probably be released near the end of June. There will likely be dissents, and the case could take until the very end of the term to resolve.

It’s possible these first three petitions may be held until the Sixth Circuit resolves cases from Tennessee, Kentucky, Ohio, and Michigan. The Seventh Circuit will hear cases from Indiana and Wisconsin in a couple of weeks, while the Ninth will hold arguments in three cases in September.

The Court could act on the existing petitions or wait to see what happens in those cases.

The Justices apparently look for cases that would provide a good vehicle to decide an issue: they don’t like messy, complicated cases with a lot of separate issues that need to be resolved. None of the current cases, with the possible exception of the Oklahoma challenge, have any major problems.

EqualityOnTrial will report on any new developments.

(b>Updated 8/13 to reflect new date for response to VA petition.)

Thanks to Equality Case Files for these filings


  • 1. hopalongcassidy  |  August 11, 2014 at 11:33 am

    I have a feeling they won't grant cert to any of them until all the circuits that have pending cases have ruled…one way or the other. I have zero legal grounds to make that guess, it's just what I think. shrug.

  • 2. Ragavendran  |  August 11, 2014 at 11:48 am

    Committee recommends marriage for same-sex couples be codified into Nepal's new constitution. And all political parties have agreed:
    This comes years after Nepal's top court ordered laws to be passed for the same (November 2008).

  • 3. GregInTN  |  August 11, 2014 at 1:03 pm

    What are the possibilities that the courts could get into a temporary "deadlock" situation where some Circuits are holding off issuing their decisions until they see whether SCOTUS grants cert on the other cases while SCOTUS holds off making a cert decision until all the Circuits have completed their cases? I believe somebody on this forum speculated that the 6th may look for such an "off-ramp" to avoid having to issue an opinion.

  • 4. Bruno71  |  August 12, 2014 at 11:39 am

    No one can really say for sure, but it seems highly unlikely to me. Sutton said that they'd rule "soon," and I don't think he'll delay just to squirm out of it. I could see SCOTUS waiting on the 6th, 7th, and 9th to rule before addressing cert on cases, but no longer than that. I find it more likely that they'll all just act as they normally would in terms of timing.

  • 5. RobW303  |  August 12, 2014 at 1:13 pm

    Their "normal" in relation to marriage equality seems to be "stay and delay. Animus? We see no animus toward the sinful."

  • 6. Bruno71  |  August 12, 2014 at 5:24 pm

    Let's say "normal" being the timeline we saw in 2012/2013 with Windsor and Hollingsworth. But of course I'm just theorizing, they may very well stay and delay until the cows come home, for no reason at all.

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