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Handicapping the Gay Marriage Race to SCOTUS: 3 Factors

By William Peacock, Esq. | Last updated on

Gay marriage is coming to the Supreme Court, sooner rather than later. And for the dozens of cases proceeding nationwide, expending resources to litigate on a state-by-state basis, the answer can't come soon enough.

How soon are we talking? Could it happen this year? And which state(s) will be the ones to get there? Utah will obviously be the first to file certiorari, as we noted last week, but will the court take the first case in the cert. pool?

Summer Break

Utah may be the first to file for cert., but it does so during the off-season. The Supreme Court is on break until its massive September conference. In the meantime, cert. petitions will pile up, including, possibly, additional appeals in gay marriage cases.

Right now, Utah is the only state in the game. But, the Fourth Circuit is set to decide Bostic, out of Virginia, any day now. If there's no en banc rehearing in that case, a cert. petition could follow shortly thereafter. The Sixth Circuit is also weighing a four-pack of same-sex marriage appeals out of Michigan, Kentucky, Tennessee, and Ohio.

By the time the Court returns in the fall, it may have multiple cases in the pool.


Even if the other cases haven't reached the cert. pool by the time the big September conference arrives, the Utah case might end up in limbo while the other states play catch-up. The Court regularly holds over cases from conference to conference, either while the judges debate a cert. grant or while they await other cases to pair up on the docket.

Doing so would allow the Court to wait out the appeals courts -- for a possible circuit split, for lower courts to address multiple lines of reasoning and perspectives, etc.


This seems like the least likely outcome. SCOTUSblog is predicting that the Utah case, Herbert v. Kitchen, will be taken up by the Court and will be argued and decided by the end of the Court's next term in June 2015. Over the weekend, the Obama administration told reporters that the Department of Justice would urge the Court to rule in favor gay marriage if it does take up the case, reports ABC.

Considering the states and the Obama administration would be pushing for certiorari, and the importance of the issue, and the number of cases racing to the Court, it seems like a foregone conclusion that the Court will grant cert. in a gay marriage case during this upcoming term. The only question is whether it'll be Utah, Virginia, Michigan, or multiple states at once.

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