Brett R. Turner, Senior Attorney, National Legal Research Group
Just a few months ago, the U.S. Supreme Court denied review over two same-sex marriage cases, creating a possibility that same-sex marriage might become the law of the land through a series of denials of certiorari, without any further opinions from the Court.
But the Sixth Circuit then rejected the concept of a broad federal right to same-sex marriage. On January 16, 2015, the Supreme Court accepted petitions for certiorari in four separate same-sex marriage cases, thus agreeing to address directly the Circuit Court split and to decide whether federal law requires recognition of same-sex marriages. The cases will together constitute perhaps the highest-profile litigation in the Court's 2015 term.
The four cases are Obergefell v. Hodges from Ohio, Tanco v. Haslam from Tennessee, DeBoer v. Snyder from Michigan, and Bourke v. Beshear from Kentucky. All were decided in the Sixth Circuit, which is presently the only Circuit holding that states may restrict the right of same-sex persons to marry.
The grant of review completes a remarkable turnaround for Obergefell, which was the first post-Windsor case to address the issue, but which did not receive expedited appellate review because the one of the spouses involved died while the case was on appeal. As a result, the Fourth and Tenth Circuit cases appeared to be the setting in which the Supreme Court would address the issue. But the Court denied review in those cases, allowing Obergefell to catch up and be part of the final resolution of this very contentious issue.
As litigation in the Supreme Court begins, the four cases are likely to receive even more public attention that they have received already. It also seems foreseeable that the case may set a record for the number and length of amicus briefs filed with the court.
Briefs are due by mid-April, so it seems likely that case will be decided before the Court takes its summer recess.
