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Monday, October 06, 2014

Ind. Decisions - Comments on SCOTUS denials today by IndianaTech law professor

Nancy Marcus, LL.M., S.J.D., Assistant Professor of Law at IndianaTech, where she teaches constitutional law, writes:

What The Court’s Marriage Case Cert Denial Means (and how to explain it to your lay friends):

1. Those same-sex couples in Indiana and the ten other states covered by the Fourth, Seventh, and Tenth Circuits should get the right to marry immediately since the stays of those courts are immediately dissolved upon the Supreme Court denying cert. As the language from the Seventh Circuit’s September 15 order clearly provides, “The stay will terminate automatically if the certiorari petition is denied....”

2. That brings the tally to 30 states + DC where same-sex marriage is legal.

3. The Supreme Court can still decide the marriage issue this term, and Ruth Bader Ginsberg indicated in a speech to a law school two weeks ago that it will... if the Sixth Circuit (the federal appellate district covering Michigan, Ohio, Kentucky and Tennessee) becomes the rogue federal appellate court to deny same-sex marriage rights.

4. The reason the Supreme Court will hear the case then, and not now, is because they like to wait until there is a "Circuit split," i.e., disagreement among federal appellate courts, before they decide an issue.

5. Marriage equality fans should be encouraged by this turn of events. The Court could have just sat on the cert appeal petitions for the Fourth, Seventh, and Tenth Circuits until the Sixth Circuit finally ruled, but by releasing those cases from the bondage of stay-land, the Court knows full well that it is going to cause hundreds of thousands of same-sex couples and their families to avail themselves of our new rights in the near future.

With the doctrinal building blocks in place, with all federal appeals courts ruling the same way to date since Windsor, and with the Court being quite aware of how its actions today will result in new legal families popping up across the country, it is hard to fathom this Court ripping away those families’ rights by, in essence, reversing itself. At least with the currently sitting Court, marriage equality is secure. Any future lower court decision going the other way will almost certainly be overturned at this point.

Posted by Marcia Oddi on October 6, 2014 02:55 PM
Posted to Ind. (7th Cir.) Decisions