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What to Expect from Supreme Court Marriage Meeting


By Matt Baume

There’s trouble brewing in Louisiana, where two judges have issued opposite rulings over the state’s marriage ban. A ruling could come any day now in Missouri. And we have new Census numbers on how many couples have actually taken advantage of marriage equality.

This is the week when the Supreme Court meets to decide whether to take a marriage case. After meeting in conference on Monday, the Justices will announce their decision next week, on October 6th. Currently, cases from Virginia, Indiana, Wyoming, Utah and Oklahoma are ready for consideration. The court could take one case, or several, or none at all.

Less than a month ago, a federal judge in Louisiana was the first to uphold a marriage ban since the Supreme Court invalidated DOMA. Now a state judge has issued an opposite ruling in a different case, finding that the ban is unconstitutional. Judge Edward Rubin also compared the ban to Louisiana’s racist “separate but equal” laws that The Supreme Court upheld in Plessy v. Ferguson. Louisiana Attorney General Buddy Caldwell has already filed an appeal.

The next ruling in Louisiana could come as early as November. A federal court has consolidated Louisiana’s federal case with a case from Texas, with a final brief due on November 7th. Or the next big marriage decision could come from Missouri. A judge there heard arguments on Friday that the state’s marriage ban is unconstitutional. The state countered that they should be allowed to limit marriage if they want to. The judge could rule in the Missouri case any day now.

Two new national polls show support for marriage equality continues to outstrip opposition. A survey from CBS and The New York Times places support at 56% to 37%. This is the lowest level of opposition ever recorded by this poll. But a Pew survey puts the numbers much closer, at 49 to 41 percent. This doesn’t mean that support is actually dropping — it’s just one survey. And if you look at every national survey together, support is still heading up into the high fifties.

Finally this week, a new report from the Census Bureau shows that over a quarter million gay and lesbian couples have married since 2004. That’s roughly equivalent to the entire population of Wyoming.


  • 1. SethInMaryland  |  September 29, 2014 at 12:10 pm

    49% in Utah Support Marriage Equality
    Written by scott on September 29th, 2014
    titleMarriage equality support in Utah has risen to record levels:

    On Top Magazine reports:

    Forty-nine percent of respondents said they should be allowed, while 48 percent said they remain opposed. Majorities of Democrats (79%) and independents (51%) support marriage equality, as do 29 percent of Republicans. Sixty-nine percent of respondents said same-sex marriage would not affect their families. Ninety-four percent of married respondents said allowing gay couples to marry would affect their own marriages not much or not all, while 5 percent said it would a great deal or somewhat. A large majority (67%) of respondents also want the Supreme Court to decide the issue and 66 percent believe the court will strike down state marriage bans.

  • 2. Jen_in_MI  |  September 29, 2014 at 1:24 pm

    I have to admit my amazement at these numbers, which have apparently shifted a tremendous amount since Kitchen. I'd like to see a few other poll results before I am convinced this poll isn't an outlier.

  • 3. Ragavendran  |  September 29, 2014 at 12:22 pm

    Looks like SCOTUS has kick-started this term with a DIG (unrelated to ME):

  • 4. DaveM_OH  |  September 29, 2014 at 12:34 pm

    Watch for another Miscellaneous Order today in NAACP v. Husted – over the weekend, Husted filed an emergency stay with Kagan to allow him to continue to restrict early voting. Voting starts tomorrow, so there needs to be an order by today so he can communicate to the county Boards of Election.
    He filed a similar emergency request for en banc at 6CA. No word yet on that either.

  • 5. franklinsewell  |  September 29, 2014 at 1:16 pm… (Scotusblog reports he received the stay.)

  • 6. Ragavendran  |  September 29, 2014 at 1:42 pm

    Yep, here is the 5-4 stay (the usual split):

  • 7. BenG1980  |  September 29, 2014 at 1:47 pm

    "Usual" in many ways, but this split has been notably absent from all of the marriage equality stays that SCOTUS has granted.

  • 8. Ragavendran  |  September 29, 2014 at 1:52 pm

    The ME stays were not necessarily unanimous. If there were dissents in the ME stays, they were not noted in the orders. That's all we know.

  • 9. BenG1980  |  September 29, 2014 at 1:58 pm

    That's exactly right. But my point is why haven't there been any dissenters or why haven't the dissenters been similarly noted in the marriage equality cases? Either the four liberals agree with the stays, or at least some of them don't want to publicly acknowledge their disagreement. It's puzzling.

  • 10. bythesea66  |  September 29, 2014 at 2:03 pm

    Logically it would seem the justices have agreed to some framework on how to handle ME cases.

  • 11. BenG1980  |  September 29, 2014 at 2:13 pm

    That may indeed be what's happening, though it's anything but logical to me. 🙂

  • 12. bythesea66  |  September 29, 2014 at 2:28 pm

    Indeed, but for example, they seem to have agreed to stays until a final ruling keeping the control with SCOTUS rather than letting the chips fall where they may in the lower courts.

  • 13. Ragavendran  |  September 29, 2014 at 2:05 pm

    Yeah… beats me. The liberal four must have felt so very strongly about today's stay order that they wanted their dissents noted. In the ME stays, perhaps the dissenters were less outraged and the concern of not tipping their hands took over? Just my guess…

  • 14. dingomanusa  |  September 29, 2014 at 2:09 pm

    Those five conservative justices are going to finish bringing down the Voting Rights Act.

  • 15. Zack12  |  September 29, 2014 at 2:48 pm

    That has been a goal of their ever since the VRA was written.
    This has only one goal in mind, to help a Republican win in 2016 just like they did in 2000, and thus ensure control stays with the Republicans.
    As for Ohio, look what Republicans did in there in 2004 to help ensure Bush Jr won it.
    They want to do the same thing again and they will most likely succeed.
    Our base is paying the price for staying home in so many states in 2010, and we will be paying for it until 2021 and districts can be redrawn.
    But it will be too late by then.

  • 16. guitaristbl  |  September 30, 2014 at 6:51 am

    Great,great…We may get marriage rights (still quite uncertain) from this court but this country will have lost everything else in order to get republicans elected. The 5 cons have a clear target as it has been states below : to elect republicans everywhere using every possible judicial manipulation. Yuck is all I have to say.

  • 17. Terence  |  September 30, 2014 at 12:26 am

    Yet another twist in the ME legal labyrinth, from Pennsylvania:

  • 18. Christian0811  |  September 30, 2014 at 1:06 am

    According to Wikipedia, the Irish government will hold a constitutional referendum in marriage equality. If that happens, what will the legal result be exactly? Will the Civil Partnership Bill 2009 effectively be enjoined from the dated of the passage of that amendment (polls seem to project a favourable landslide) or will there have to be judicial or legislative action to put it to force? Or will the referendum include an update to statutory language as well as the consitutional amendment?

    Sorry if this is a lot, I'm trying to educate myself a bit more =]

  • 19. rwingfield  |  September 30, 2014 at 2:03 am

    The referendum on same-sex marriage in Ireland (scheduled for Spring) will not in and of itself allow for same-sex marriage. That requires statutory legislation. What it will do (this is speculation as the text of the proposed amendment hasn't been finalised yet) is amend Article 41 of the Constitution (which relates to protection of the family) to make clear that the family (and marriage) can include both opposite-sex and same-sex couples. But this is just a constitutional provision which is more principle than substance and doesn't have any direct legal effect.

    The referendum won't make any changes to statutory legislation. Referendums in Ireland can only amend the constitution, not legislation. If the amendment is passed, then the Irish Parliament – the Oireachtas – will need to pass specific legislation to enable same-sex marriage, including repeal of the existing prohibition. It is likely that the government will publish the proposed legislation at the same time, or shortly after, the referendum, so as to minimise delay in its enactment.

    The pithily worded Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 will remain in force following the referendum. Legislation cannot be enjoined by a referendum in Ireland. It will be up to the Oireachtas to decide whether to discontinue civil partnerships (like Scandinavian countries have done), expand their scope to include opposite-sex couples, or to make no changes at all (like England and Wales). My guess is that they'll copy England and Wales and keep civil partnerships for same-sex couples once same-sex marriage is introduced.

    Once Ireland legalises same-sex marriage, and the polls suggest it will, I think we'll see a pause before any further progress in Europe for a while. Finland may legalise it in Autumn this year, but that's looking uncertain. Next would be countries like Austria, Germany, Switzerland and the Czech Republic, but all of these countries are governed by coalitions of parties which include at least one hostile to same-sex marriage. Italy may introduce civil unions and Estonia looks likely to permit registered cohabitation for same-sex couples, but I think we'll need to see some changes in government before any further progress is made here in Europe. Events in the US are far more exciting, and a positive ruling by the US Supreme Court may re-energise efforts here in Europe so we look to you with interest!

  • 20. Christian0811  |  October 1, 2014 at 2:39 am

    Could a district court in Ireland deliver an injunction, to halt the injustice while the discriminatory statutory language is repealed, or is that unique to the US?

  • 21. ragefirewolf  |  October 1, 2014 at 4:18 am

    I believe Ireland operates with a sovereign parliament like the UK does, so the short answer would be no, an Irish judge cannot judicially review legislation. Someone correct me if I'm wrong.

  • 22. SimmieK  |  October 1, 2014 at 4:53 am

    Ireland has a written constitution, and Irish courts can strike down laws as unconstitutional. There is a section called "Fundamental Rights" which is similar to the US Bill of Rights. So more like the US than the UK in those ways.

    But it is a very different document from the US constitution. You won't find language like this anywhere in the US constitution: "In the Name of the Most Holy Trinity", "Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ", "The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence", "The State acknowledges the right to life of the unborn".

    More to the point, it says: "The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack." Opponents of marriage equality argue that this assumes a definition of marriage which excludes same-sex couples. So far, while the Irish courts have not completely endorsed that line of argument, they've show substantial sympathy for it. If that interpretation is correct, this clause would outweigh the guarantees of equality elsewhere in the constitution.

    So the simplest way forward is to amend the constitution to replace that language with an inclusive definition of marriage. The alternative, of introducing marriage equality by statute, and then defending it from the inevitable constitutional challenge, is riskier – there is at least a 50% chance it could end in a ruling that marriage equality is unconstitutional. The odds of a constitutional amendment referendum passing are better than 50% I think.

  • 23. ragefirewolf  |  October 1, 2014 at 7:11 am

    Very interesting. I learned something new! Thank you for clarifying and your detailed response!

  • 24. Christian0811  |  October 1, 2014 at 12:41 pm

    Although, looking at the language (and my own experience with American Common Law. Specifically Californian, if my icon didn't give it away) if I were a justice in the Irish Supreme Court I'd be inclined to rule the neutrality of the language on marriage and the guarantee of equality under Article 40 •1 of the Constitution that SSM would not only be constitutional but required.

    I know I'm bias, however I honestly don't think the court could rule against it given the lack of an explicit ban and the general tendency of common law courts to construe the law in a manner that is most favourable to human liberty.

    At least, that's what they're supposed to do according to tradition unless I'm misinformed

  • 25. Christian0811  |  October 1, 2014 at 9:06 am

    Indeed, Article 34 •5 of Constitution of Ireland says the Supreme Court may enact judicial review.

  • 26. F_Young  |  October 1, 2014 at 5:43 am

    Reposted to the correct subthread:

    Thanks for the concise but comprehensive update, rwingfield. It's hard to get up to date information about ME in Europe.

    I'm really disappointed by Finland; I would think they would have done something by now just from sheer embarrassment at being behind the Scandinavian countries.

  • 27. F_Young  |  September 30, 2014 at 5:03 am

    Anti-Gay Laws Lead to Financial Woes for LGBT People: Report

    This is a good article on the financial penalties gays and lesbians face due to discriminatory laws, including marriage bans.

  • 28. DaveM_OH  |  September 30, 2014 at 6:50 am

    No Orders today. Most likely Friday or Monday.

  • 29. guitaristbl  |  September 30, 2014 at 7:01 am

    Today's order in the Ohio early voting case reminded me yet again with what court we are dealing with exactly. Anything to keep republicans in office, no matter if the majority's will is represented. Kennedy may indeed vote in favour of marriage equality (although such orders remind me this is less and less likely..) but he is no less of a scumbag. The voting rights case a year ago, Hobby Lobby, Schuette,McCutcheon,Town of Greece and the heinous McCullen (which personally I consider much worse from Hobby Lobby) are just a few that will damage this country's reputation and well being in the long run and for a long time.

    Not once in my life have I wished harm to anyone but Scalia getting a heart attack right about NOW may save this country from further damage and stripping of freedoms in favour of corporational anarchy and imposure of a theocracy.

  • 30. Eric  |  September 30, 2014 at 10:19 am

    I wouldn't worry too much about the man that wrote:

    Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

  • 31. guitaristbl  |  September 30, 2014 at 10:24 am

    That's something Kennedy said I suppose ?

  • 32. ebohlman  |  September 30, 2014 at 8:16 am

    Today the 6th Circuit released a (published) opinion for a case that was argued a year ago this Friday. Fast, they aren't.

  • 33. guitaristbl  |  September 30, 2014 at 8:48 am

    The marriage cases are on an expedited schedule though, meaning they are to be decided not THAT long after oral arguments.

  • 34. Margo Schulter  |  September 30, 2014 at 12:08 pm

    Eric, before I check, is that quote from Lawrence v. Texas (2003)?

  • 35. tushargoyal357  |  October 15, 2014 at 3:36 pm

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