Legal Roundtable Previews Supreme Court Session
The U.S. Supreme Court started its new term Monday morning by announcing it would not hear petitions related to bans on gay marriage in Indiana, Oklahoma, Utah, Virginia and Wisconsin.
The announcement didn’t mean anything — the court did not agree, and it did not disagree, said William Freivogel, professor at Southern Illinois University–Carbondale’s Paul Simon Public Policy Institute. But in practice, in means same-sex marriage is now legal in those five states.
“I’ve seen estimates that about 30 states will be able to move ahead with same-sex marriages as a result of this action,” Freivogel said. The court usually looks for cases where there is a split among the circuit courts, he said. In this instance, that split didn’t exist. “They’re just letting it go ahead without blowing the trumpet of social change, and maybe they would rather just see this happen without forcing it upon people.”
“This is not the court’s last word on this,” Washington University law professor Lee Epstein said. “There’s a reason they’re waiting.
“On the liberal side, they get to wait until there’s a majority of states that have same-sex marriage in effect. On the conservative side, they don’t have a circuit split. They don’t have a circuit that has actually upheld a same-sex marriage ban. They might get one — there’s a case in the sixth circuit that very well likely could uphold a same-sex ban.”
The court also may be waiting for a societal consensus.
“The courts sometimes are not good when they get out ahead of society kind of norms, and I think there’s been a dramatic change in the country in the last 10 years about our attitudes towards gay marriage,” said Mark Smith, associate vice chancellor of students at Washington University.
Freivogel said the same thing happened when the court addressed interracial marriage laws in 1967’s Loving v. Virginia, a landmark civil rights decision.
Missouri has a constitutional ban on same-sex marriage. A Kansas City judge ruled last week that Missouri must recognize same-sex marriages performed in other states where the marriages are legal. Missouri Attorney General Chris Koster announced Monday afternoon that he will not appeal the court’s ruling.
Supreme Court Expectations
As the high court prepares for its new term, Epstein said she’s interested in what cases the court plans to hear.
“Last year, there were some interesting and important cases, but I would say on the whole it was a pretty low salience, low profile term that resulted in a lot of unanimous decisions,” Epstein said. “This year … is stacking up to me to be the same. The same-sex marriage case is now off the table; the docket looks pretty low-key.”
Taking on affirmative action or abortion cases could stir things up, though, she said, and Smith agreed.
“Right now it looks pretty low key, but if they take that affirmative action case out of Texas, which is still percolating around, there’s a very good chance that could be the death of affirmative action,” he said.
Fisher v. University of Texas at Austin concerns the university’s affirmative action admissions policy. The Supreme Court previously voided an appellate court’s ruling in favor of the university, sending it back to the lower court. It’s possible the case could make its way back to the Supreme Court.
The court also could take on First Amendment cases, specifically those that address corporations.
First Amendment cases have changed, Freivogel said. He said Chief Justice John Roberts, who is starting his 10th term, has strongly protected the First Amendment.”
“It’s a different kind of First Amendment than we used to see back in the days of the Warren Court,” Freivogel said. “The First Amendment sort of came to life a hundred years ago protecting outsiders: communists, anarchists, socialists, Seventh-day Adventists, Jehovah’s Witnesses. And now it’s, under the Roberts court particularly, recognizing people who are insiders: big campaign contributors, corporations giving campaign contributions, mainline Christian prayers to start town meetings.”
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