Results of Monday’s court conference may shed light on how many contentious issues will be considered this term.
The Supreme Court will sit for their first long conference of the October session on Monday, and SCOTUS watchers are anxious to find out whether or not the Court will decide to wade once more into the murky waters of the marriage equality battle.
There are seven gay marriage cases set to be discussed during the Monday conference, and each of them offers a slightly different variation on the argument that has been raging since before this writer even began to think about the possibility of attending law school.
The Supreme Court will not only be considering the matter of timing. What case or cases it ultimately hears will help determine the scope of its eventual ruling, both as it pertains to marriage itself – will its ruling apply to the ability of gay couples to get married in all states or just whether states have to recognize the same-sex marriages of other states – and the decision’s implications outside the issues of marriage.
“The court is going to have to decide how much it is going to put on its plate,” said Gregory Garre, a former U.S. solicitor general and now the chairman of the Supreme Court and Appellate practice at Latham & Watkins, at a panel sponsored by the American Constitution Society for Law and Policy.
Bans in Utah and Oklahoma, both overturned in separate decisions by the 10th Circuit, were decided on the basis of due process, meaning that denying gay couples the ability to wed deprives them of their fundamental right to marry. The 7th Circuit decision finding Indiana’s and Wisconsin’s same-sex marriage bans unconstitutional did so on the grounds of the equal protection clause of the 14th Amendment, with the unanimous panel arguing that same-sex marriage bans discriminate against one’s sexual orientation. If the Supreme Court decides on a case that invokes the equal protection clause, how it interprets the 14th Amendment could affect judicial rulings on other questions of LGBT rights and discrimination.
Those on both sides of the argument say they can win on either grounds.
Walker v. Wolf, which has come up for review out of the Seventh Circuit, is on its face the broadest of the seven cases the Court has the option to consider, but as Garre points out, the Court may not be ready to issue a sweeping ruling so soon after the fall of DOMA. The Circuits and other lower courts have offered consistently inconsistent rulings, and the Court may do well to allow more cases to work their way through the system before they decide one and for all whether or not states have the right to decide who is free to marry within their borders.
Also up for consideration during Monday’s conference is Carroll v. Carman, which will deal not only with “knock and talk” procedures for police officers, but the touchy issues surrounding qualified immunity for officers who toe the line between a constitutional entry and an unconstitutional search; EEOC v. Abercrombie and Fitch Stores, which asks whether or not an employer can make hiring and firing decisions based on the religious observances of the employee; and Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, which asks whether or not disparate-impact claims are cognizable under the Fair Housing Act.
We’ll be following this session of the Supreme Court closely; even if the Court takes up only a fraction of the most controversial cases up for review, this session is sure to get pretty wild.DONATE
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