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Ginsburg: 6th Cir. Could Force SCOTUS' Hand on Gay Marriage. Really?

By Mark Wilson, Esq. | Last updated on

Speaking at the University of Minnesota Law School earlier this week, Justice Ruth Bader Ginsburg said that the Sixth Circuit cases on same-sex marriage were going to be crucial to the Supreme Court's same-sex marriage decisions.

If the Sixth Circuit upholds bans in Michigan, Ohio, Kentucky, and Tennessee, "there will be some urgency" on the High Court's part to intervene, Ginsburg told the audience.

When Wasn't It Urgent?

But wait a minute: Saying the court will act urgency if the Sixth Circuit upholds the bans implies that it wasn't going to act with urgency in the first place. The Supreme Court is already slated to entertain cert. petitions from five states, encompassing three circuits. It's true that, in each of those circuits, the court struck down same-sex marriage bans, but with same-sex marriage such a topic of controversy nationwide, it's not like the High Court can wait that much longer to decide the issue.

The Supreme Court is already moving as fast as it can: The justices will decide on the petitions at their very first conference of the 2014 term, set for September 29. It's hard to imagine how they could move much faster, other than scheduling oral arguments sooner in the year. It seems a foregone conclusion that if the Court agrees to hear the cases, it will hear them this term and release an opinion probably on the very last day of its term, as it did with Windsor.

You Weren't Going to Wait Another Term, Were You?

Perhaps what Justice Ginsburg meant is not "urgency" in the sense of calendaring oral argument in January or February, but in the sense of taking up the issue at all this term. The Supreme Court loves to kick things down the field, and if there's no circuit split right now, then there's no reason to upset the status quo and grant certiorari.

If this is what urgency is supposed to mean, then it's a strange definition: The Court is either going to hear the cases this term or next term. It can't just leave the legality of same-sex marriages dangling in the breeze for another year because one circuit hasn't said "yes" to a same-sex marriage ban. There's no "status quo" -- it's not like same-sex marriage is a settled issue, after all -- there's just uncertainty.

There's as much need to rush, whether or not the Sixth Circuit decides the other way. All the circuit courts' orders are being stayed pending the outcome at the Supreme Court, meaning that in three circuits, the law is that same-sex couples can get married -- except that right now, they can't. They certainly can't be expected to wait beyond June for an answer to the question, "Can I get married yet?" Don't believe Justice Ginsburg: Same-sex marriage is coming, like a freight train, to the Court this term.

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