The Supreme Court and Same-Sex Marriage

This upcoming week is the last week of arguments for the current Supreme Court Term.  The highlight of this week’s arguments is Tuesday’s arguments in the same-sex marriage cases.  Ahead of the argument, a brief preview in the form of frequently asked questions.

1)  Will the Supreme Court hear evidence on Tuesday?     No, in the Anglo-American legal system (unlike some code-law based legal system), appellate courts hear a case based on the record created in the trial court.  There are some exceptions in which an appellate court has “original jurisdiction.” (For the Supreme Court, the typical original jurisdiction case involves a water or boundary dispute between two or more states).  Even for original jurisdiction cases, appellate courts tend to appoint a special master (a judge or respected attorney) to take the evidence and issue a report to the court summarizing the evidence and recommended findings.

2)  How does a case get to the Supreme Court?  In the U.S, the party that loses in the trial court (other than the prosecution in a criminal case) has an “appeal of right.”  For most cases (both in the state systems and in the federal system), that appeal of right is to an “intermediate” appellate court.  An “appeal of right” means that if the losing party files a notice of appeal (and sometimes both sides lost on some issue and will file competing notices of appeal), the parties get a decision “on the merits” from the appellate court.  For only a small segment of cases is the appeal of right to a state’s highest court or the U.S. Supreme Court (e.g., some voting rights cases).  Otherwise, the appeal to the “high court” is a “discretionary appeal.”  In a discretionary appeal, the party that lost in the intermediate court has to file a request with the high court asking the high court to take the case and decide it on the merits.  The high court has the option to choose which cases it wants to take.

For the U.S. Supreme Court, the process of requesting review is called a petition for writ of certiorari.  (A writ of certiorari is an order directing the lower court to send the record to the Supreme Court.)   The party that lost in the U.S. Court of Appeals (the federal intermediate appellate court) or a State high court can file such a petition to raise an issue of federal law.  For the purposes of filing a petition for writ of certiorari, a state high court’s decision denying discretionary review counts as losing in the state high court but a party has to seek review in the state high court before asking for U.S. Supreme Court review.  After the initial petition from the party that lost below (designated as the petitioner), the opposing party (designated as the respondent) can file a response asserting why the Supreme Court should decline to review the case.  The petitioner then gets to file a reply.  In addition, outside parties can file suggestions as “amicus curiae” (literally, friends of the court) suggesting why the Supreme Court should or should not review the case.  After all of the pleadings have been received, the documents are distributed to the nine Justices and the case is scheduled for an upcoming conference (more on this later).  At the conference, it takes four justices to agree to take a case.

3)  What are the Supreme Court’s options on a petition for writ of certiorari?  The primary option is to deny the petition.  Over 95% of the petitions are simply denied with no further comments.  For a small number of petitions, one of the Justices may right an opinion explaining why that Justice thought that the case should or should not be taken, but most of time it is a simple order denying as part of the court’s “order list.”  A small number of cases involve the same issue as a case that the Supreme Court has decided after the appellate decision.   For those case, it is not unusual for the Supreme Court to “grant” the petition, “vacate” the initial appellate decision, and “remand” to the lower court to re-hear the case based on the recent Supreme Court decision.  Finally, for an even smaller number of cases (maybe ten a term), the Supreme Court will decide that the appellate decision is so clearly misguided that the Supreme Court will issue an opinion (typically, a “per curiam” opinion — an opinion that is not attributed to any particular Justice as the author) summarily reversing the intermediate appellate court without any formal opinion.  For approximately seventy to eighty cases a term (this number used to be higher), the Supreme Court will grant full review.

4)  What leads the Supreme Court to grant review?  Other than on the rare cases in which a Justice writes an opinion on the denial of a petition, the Justices normally do not officially explain why they took (or did not take) a specific case.  The Supreme Court has suggested that the primary considerations are the significance of the case and the existence of a conflict on an issue between lower courts (particular between the different “circuits” (the regional divisions of the U.S. Court of Appeals).  For example, the Supreme Court declined to review the issue of same-sex marriages until there were appellate decisions on both sides of the issue.

5) What happens when the Supreme Court grants full review?  After the Supreme Court grants review, the petitioner files a full-length brief.  (The original petition has a word limit of 9,000 words.  The brief on the merits has a limit of 15,000 words).  Respondent then files its brief followed by petitioner’s reply brief.  Additionally, amicus curiae can also file briefs in support of either party (or in support of no party).  Amicus curiae typically include state governments with similar legal issues, groups of law professors, and interest groups.  If the United States (or a federal agency) is not a party, the Solicitor General’s Office will often file an amicus brief.   The case is then scheduled for oral argument.  Oral argument typically is scheduled for one hour (thirty minutes a side).  As discussed below, the same-sex marriage cases are not a typical case.

6)  What happens at oral argument?  The petitioner goes first.  While the attorneys try to make a presentation of their strongest argument, the main purpose of argument is to answer the questions that the Justices may have after reading the briefs.  At the Supreme Court, attorneys are frequently interrupted by the Justices asking questions — sometimes very pointed questions that make clear what the Justice thinks.  The petitioner will typically stop before the end of the thirty minute to reserve some time for rebuttal.  After the petitioner concludes, the respondent goes followed by the rebuttal.  Sometimes, the Supreme Court will permit an amicus to participate in argument (typically only the Solicitor General on behalf of the United States will get this opportunity).  If an amicus does participate, their time comes from the time that would normally go to the side that they are supporting.

7)  Can we see this argument on television?  No.  The Supreme Court does not televise its arguments.  They do not even have live audio streaming.   The Supreme Court does release a transcript of the argument later that day.  Normally, the actual tapes of the arguments are not released until Friday, but, in rare cases, the audio will be released on the day of the argument.  The current information from the court is that the audio from these arguments will be released on Tuesday.  (The last time that this happened was for the Obamacare arguments in 2012).

8)  Can we see the argument in person?  Only if you are very lucky.  There are limited seats available to the public.  For a case like the same-sex marriage cases, the  line for those seats can be very, very long.

9)  What happens on the day of argument?  The Justices will take the bench at 10:00 a.m. EDT.  The first order of business is the issuance of any opinions from earlier cases.  The second order of business is the swearing in a new members of the Supreme Court bar.  Only then does the court proceed to arguments.

10)  Will we get a decision on Tuesday?  No.  The Justices will not discuss the case until the weekly conference on Friday.  Even then, they will only take a tentative vote.  Based on that vote, the senior Justice in the majority will assign the case to a Justice to write the opinion.  (For the same-sex marriage cases, the senior justice will probably be Chief Justice Roberts or Justice Kennedy and that justice will probably keep the case for himself.)  That justice then circulates the opinion to the other justices.   The other justices make editorial suggestions — mostly substantive (letting the writing justice know that they can’t agree to a proposed legal conclusion).  The other justices may also choose to write their own opinions in response — explaining their understanding of the initial opinion or that they agree with the result but not the legal conclusions in the opinion or that they disagree with the result.  Once all the justices are done writing and everybody is satisfied with the drafts, the opinions are released.  It takes five of the nine justices to agree on the result (decision of the court) and five justices agreeing on an opinion for that opinion to be the opinion of the court (binding on lower courts).  If there is no opinion that gets five votes, lower  courts have to try to interpret the competing opinions to determine the “fifth” vote in the majority.  It typically takes two to four months to get an opinion in a case.

11)  What are this conference, term, and order list?  The Supreme Court schedules its cases for argument based on the same calendar cycle each year.  That cycle is the Supreme Court’s term.  The term officially begins on the first Monday in October (thus this term is the October 2014 term).  Each term consists of seven argument sessions (commonly called the October, November, . . . April session).  The term can also be broken up into four parts.

Each argument session is two consecutive weeks during which arguments are held on Monday, Tuesday, and Wednesday.  If one of those days is a holiday, there is one fewer day of argument that week.  Typically, each argument day has two cases (each taking approximately one hour), but the actual number of cases depends upon how many cases are available.  On the Friday before the first week of argument, the Supreme Court holds a private conference of the nine justices (no staff or non-Justice in the room.)  At that conference, the justices make decisions on pending petitions (most are denied without formal discussion) and decide if any opinions are ready for release.   Similar conferences are held at the end of each week of argument.  Typically, on the Monday of the argument week (or Tuesday if Monday was a holiday), the Supreme Court will release the “order list” before the first arguments indicating the disposition of the pending petitions and other matters.  The Supreme Court also releases an order list on the Monday after the second week of argument.  After the two weeks of argument, the Supreme Court then has, at least, two non-argument weeks.  During argument weeks, opinions tend to get released on Tuesday or Wednesday.

Within this cycle of argument sessions, the term can be broken into four parts.  Part one covers the October through January argument sessions.  In this part, the Supreme Court tends to release a separate order immediately after the Friday conference.  (The reason for this is that the Supreme Court tends to only carry over enough granted cases to go through the first week of argument in January.  Cases granted in October need to be ready to be argued by January with cases in January likely to be heard in April.   Announcing the grants on Friday, gives the parties three more days to work on their briefs.)  There are also few opinions issued (at least before January).  The second part covers the February through April sessions.  The Supreme Court tends not to announce the grants until the Monday order list during this part (since the arguments will not take place until the Fall) and there usually are opinions released.  The third part begins in May when the Supreme Court holds weekly conferences on Thursday followed by a Monday release of the order list.  During this part, opinions are released on Monday but can also be released on any other day of the week (near the end of the period, opinions are released on multiple days each week).  The Supreme Court aims to wrap up the release of opinions by the end of June.  The last part of the term runs from July through September.  During this part, barring an emergency, there are no arguments or merits opinions.  However, the justices are available to review emergency petitions (mostly orders seeking to stay some action like an execution or a lower court decision).

12)  Enough of the general stuff, what is specifically is happening with the same-sex marriage cases?  The same-sex marriage cases are four cases from the different states (Kentucky, Ohio, Tennessee, and Michigan) of the Sixth Circuit (one of the twelve regional divisions of the U.S.  Court of Appeals).  The U.S. Supreme Court took two broad issues.  The first is whether laws prohibiting same sex marriages violate the Equal Protection Clause of the Fourteenth Amendment.  The Supreme Court will hear ninety minutes of argument on this issue:  thirty minutes from counsel for the couples (petitioners), fifteen minutes from the Solicitor General in support of the couples; and forty-five minutes from counsel from the states (respondents).  The second is whether laws declining to recognize same-sex marriages performed in other states violates the Equal Protection Clause.  The Supreme Court will hear one hour of argument on this issue:  thirty minutes from counsel for the couples and thirty minutes from counsel for the states.  Even though these cases involve multiple parties on each side, the couples have agreed on one counsel to argue the “right to marry” issue and a different attorney on the “recognition” issue and the states have done the same.

13)  In plain English, what are the legal issues?  The big underlying issue is the level of scrutiny to be applied to the state laws.  The Supreme Court uses different levels of scrutiny in Equal Protection cases depending on the right involved and the nature of the classification (here, sexual orientation).  The highest level (strict scrutiny) is almost impossible for a state to satisfy requiring really strong justification for using an otherwise forbidden classification (e.g. race).  The lowest level of scrutiny (rational basis) is very easy for a state to satisfy requiring a showing that somebody might think that the law is a good idea and that there is a reason to make the classification at issue (e.g, separating doctors from non-doctors in determining who gets to practice medicine).  The Supreme Court has never expressly addressed the appropriate level of scrutiny for laws implicating sexual orientation.  If the couples can convince the Supreme Court to use a higher level of scrutiny, they are very likely to win.

In the lower courts, couples seeking the right to marry have tended to win when the courts have applied what most lawyers call “rational basis plus.”  Rational basis plus involves the courts nominally using rational basis review  but with a very skeptical eye toward the alleged justifications.  In these cases, the courts have tended to find that the alleged justifications are not reasonable.  In the Sixth Circuit, the court applied the more traditional rational basis test in which the courts hold that it is the right  of the legislature/voters to decide the validity of any justification.

On the recognition issue (whether a state has to recognize a same-sex marriage performed in another  state as a valid marriage when that couple moves to or returns to a state that does not allow same-sex marriage), there are side issues of the right to travel and the Full Faith and Credit Clause.  Normally, the Full Faith and Credit Clause requires states to give effect to the laws of other states.   In most types of activities (including for most marriages), states recognize an action — marriage, divorce, adoption, entering into a contract — as valid if it was valid in the state where it occurred.  This custom makes the refusal to recognize same-sex marriages performed in another state stick out like a sore thumb.  (One of the reasons why the Supreme Court struck down the federal law refusing to recognize same sex marriages.)

14)  So what is likely to happen?  The most likely thing to happen is that we will get a 6-3 or 5-4 opinion at the very end of June.  Before the Supreme Court took both issues, I thought that they would only take the recognition issue and then punt the right to marry issue back to the lower court (hoping that the Sixth Circuit would get the hint).  Giving that the Supreme Court has allowed lower court decisions recognizing a right to marry to go into effect, I think that the Supreme Court will recognize a right to marry.  The bigger question is going to be the reasoning in the majority opinion because either option of how to write the decision will annoy the fundamentalist wing of the Republican Party.  On the one hand, fundamentalists will be outraged if the Supreme Court says that sexual orientation is not a permissible classification and, therefore, laws discriminating based on sexual orientation are subject to some restrictive level of scrutiny.  On the other hand, the fundamentalists will also be outraged if — in nice , polite, legal language — the Supreme Court calls them ignorant, irrational bigots.



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