WASHINGTON DC -- Gay marriage will not immediately be on the docket at the U.S. Supreme Court this term after the nine justices failed to take up any of the five cases that have been appealed to the nation's high court.
The justices met Monday in closed session to choose which cases to deliberate in the term that begins next week. They could have picked one of the gay marriage cases, some of them, all of them or none of them.
The cases involved Indiana, Oklahoma, Utah, Virginia and Wisconsin.
But today, the high court issued orders for the upcoming session, but none of them involved the five high-profile gay marriage cases.
Amy Howe of SCOTUSblog went live this morning as the orders came out. She wrote this:
"So to clarify, the Court did not act on any of the same-sex marriage cases. This could mean a couple of different things. It could mean that the petitions will be denied when the Court issues the rest of the orders from Monday's conference -- probably on Monday morning at 9:30 a.m. It could also mean that the Justices are taking more time to look at the cases: there are seven different petitions, involving a couple of different issues and different stances by state officials. Even if there are four votes to take up the issue, they may need additional time to figure out which case(s) and which question(s). The next conference is scheduled for next Friday, October 10, so if review is not denied on Monday, October 6, we likely would not hear anything until Tuesday, October 14 (because October 13 is a federal holiday)."
Many legal scholars are not surprised that the high court is taking a slow, deliberate approach to marriage equality. So far, none of the cases coming out of the appellate courts are at odds, a situation that typically doesn't trigger urgency with the high court.
In fact, justice at the Supreme Court tends to move as quickly as a hibernating bear. Some believe that the ideological-split high court would rather see marriage equality spread slowly, state by state, district court by district court, and appeals court by appeals court. The thinking is that this would allow the nation, as a whole, to get used to the concept of gay and lesbian couples marrying.
Justice Ruth Bader Ginsberg recently hinted that the high court would not likely do anything unless one of the appellate courts rules to uphold a state ban on gay marriage. If that happens, it would likely come from a Republican-controlled appellate court like the Fifth Circuit Court of Appeals in New Orleans, when it will hear appeal cases from Texas and Louisiana where the gay marriage bans have been ruled unconstitutional.
But the Fifth Circuit faces a big change if President Barack Obama can fill up current and upcoming vacancies before his term expires. The potential is that the Fifth Circuit could become much more centric in its makeup.
Then there is the Eighth Circuit, based in St. Louis, which also leans very conservative after President George W. Bush stocked it full of right-wing judges to fill six vacancies. In 2006, the Eighth Circuit upheld Nebraska's ban on gay marriage, although that decision was years before the high court ruled in favor of gay marriage rights in the Windsor case that is now powering many of the lower court rulings.
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Ken Williams is Editor in Chief of SDGLN and GLBTNN. He can be reached at firstname.lastname@example.org, @KenSanDiego on Twitter, or by calling toll-free to 888-442-9639, ext. 713.