Since my last posting regarding estate planning in same-sex marriages a few weeks back, the U.S. Supreme Court has announced it will take up the issue of the legality of same-sex marriage. The Supreme Court reviews only a limited number of cases each year (perhaps 1 or 2%), picking and choosing from the thousands of cases decided on appeal by the Courts of Appeals.
A quick civics lesson: if you have a federal lawsuit (like suing under the U.S. Constitution to force a State to recognize your marriage), you sue in a U.S. District Court. In Idaho, this was the Latta v. Otter case. The losing party at the District Court has a right to appeal the case to a Court of Appeals. In Idaho, our appeals go to the (fairly liberal) Ninth Circuit Court of Appeals, headquartered in San Francisco. There are thirteen of these courts in total and they typically have the final say in any federal disputes, because so few cases make it to the Supreme Court.
Now some history: the Fourth, Seventh, Ninth, and Tenth Circuit Courts of Appeals were the first four to address the question of same-sex marriage, and all four found that same-sex marriage was required under the Constitution. The Supreme Court was asked to review the result in each of those cases, but it always declined. The Sixth Circuit Court of Appeals considered the issue next, and found against same-sex marriage. It is that decision that the Supreme Court will be reviewing.
Observers might be tempted to assume that the Supreme Court is reviewing this decision because the Sixth Circuit “got it wrong” in the eyes of the Supreme Court. This assumption is likely false. The Supreme Court almost never reviews an issue where the Courts of Appeals are in agreement, as was the case prior to the Sixth Circuit’s decision. Instead, the Supreme Court waits until a “split in the Circuits” arises — meaning a difference in opinions between two Courts of Appeals. Now that there is a split, the Supreme Court has agreed to review the issue.
It is also tempting to assume that the “votes” are four Circuits to one, so the Supreme Court will find in favor of same-sex marriage. That assumption is also false. In the law, appellate courts generally look at the quality of the reasoning supporting the judicial opinions, not the quantity of courts that agree.
So, advocates on both sides of the issue will simply have to hold their breaths and wait until the Supreme Court hears the case (probably in the spring) and issues its decision (probably in the summer). The good news, though, is we should have certainty (to the extent we ever have certainty in the law) by the end of the year on this issue.