Wednesday, August 20, 2014

SCOTUS Virginia SSM Stay Makes Merits Ruling By June 2015 All But Inevitable

by Michael Dorf

The Supreme Court order granting a stay of the ruling of the 4th Circuit regarding Virginia's same-sex marriage ban makes it nearly certain that the Court will grant cert to decide the constitutionality of laws banning same-sex marriage in time to be decided during the upcoming (October 2014) Term.

No one can be surprised by this order, given the similar SCOTUS disposition in the Utah case back in January. But the Utah case was different in an important respect: The underlying merits decision was a ruling of the district court; thus, one could understand the SCOTUS grant of a stay there as merely based on the view that the status quo ante ought to be preserved so that the appeals court could hear the case without risking putting marriages in limbo. (Of course, there was enough of a delay between the district court ruling and the time when the Supreme Court stay was granted, that limbo wasn't avoided anyway, but that's a different point.) By contrast, the SCOTUS order in the Virginia case comes after an appeals court disposition, and is in effect "pending the timely filing and disposition of" a cert petition. If the Court denies cert, that will mean the stay is dissolved and same-sex marriage will be legal in Virginia (and the other states in the 4th Circuit). But I can't see the Court doing that unless the Justices are certain that they will eventually affirm a right to same-sex marriage. And if they were certain of that, then they wouldn't have granted the stays in either the Utah or Virginia cases, because the limbo problem only arises if there is a serious prospect that marriages will be found legal and then later made illegal.

So I think the likely--indeed the overwhelmingly likely--outcome of a cert petition in either the Virginia case or some other case to reach the Court soon will be a grant of cert. And notwithstanding my analysis above, I think it quite likely that the Court will then find a right to SSM. That's because the likelihood of a 5-4 vote in the Court is enough to support the conclusion that the issue is close in one sense, but I have a very hard time counting beyond four votes against a right to SSM on this Court.

7 comments:

Joe said...

We have shades of Windsor here with the state of VA not defending the law but wanting the issue decided while a clerk challenges it.

Wikipedia, to save time, summarizes:

"prohibiting civil unions or similar arrangements between members of the same sex, including arrangements created by private contract"

Such a broad ban provides, if he's willing to take it, a chance for Roberts to strike down the law w/o support a broad constitutional right of same sex couples to marry.

Decent shot he'll take it. With Alito's separate opinion in Windsor and Scalia/Thomas' usual views, 6-3 is as high as I'd go. I thought there was a longshot chance Thomas would accept the federalist argument in Windsor.

Anyway, a chance for Roberts to "concur in judgment" is another possible reason VA is a good case to take.

喜洋洋 said...

高雄縣徵信商業同業公會
南部徵信聯盟
外遇觀測站
大愛離婚諮詢網
離婚大剖析
大愛徵信有限公司
尋人專家徵信服務網
女人徵信公司
華陀徵信
離婚協助中心
跟蹤蒐證徵信器材網
抓姦觀測
大愛徵信
溫馨徵信
成功徵信社

Emma O'Connell said...

By contrast, the SCOTUS order in the Virginia case comes after an appeals court disposition, and is in effect "pending the timely filing and disposition of" a cert petition. If the Court denies certcheapest fifa 15 coins LOL Elo Boost

喜洋洋 said...

高雄縣徵信商業同業公會
南部徵信聯盟
外遇觀測站
大愛離婚諮詢網
離婚大剖析
大愛徵信有限公司
尋人專家徵信服務網
女人徵信公司
華陀徵信
離婚協助中心
跟蹤蒐證徵信器材網
抓姦觀測
大愛徵信
溫馨徵信
成功徵信社

jim said...

For most people, travel offers a thrilling way to learn more about the world around them. Traveling provides the chance to meet interesting people and experience
http://www.ntmedicarelocal.com |

http://www.vickiemilazzohealthcarefocus.com |

http://www.eldercarematterscanada.com |

http://www.caregivingreviews.com |

http://www.bestcaregivingsolution.com |

marly aaran said...

I bumped into your post. I don't usually post in blogs but your blog forced me to. Awesome work! Thank you for sharing!
gatewaycanyonairtour.com |

amy ryan said...

You’ve got some interesting points in this article. I would have never considered any of these if I didn’t come across this. Thanks!.
http://www.hometorrevieja.com |