The Freedom to Marry at the United States Supreme Court

In fall 2014, same-sex couples and legal teams urged the United States Supreme Court to consider one or a combination of cases that seek to strike down state laws that deny the freedom to marry. On October 6, 2014, the high court denied review in all of the cases seeking review, opening the door to the freedom to marry in an additional 11 states, for a total of 30.  (Updated 10/6/14)

THE CASES
POLLING
AMICUS BRIEFS
SCHEDULE
WHAT YOU NEED TO KNOW:

SCOTUS CONFERENCES:

This fall, the United States Supreme Court returned from its summer recess and begin reviewing hundreds of petitions that filed asking the Court to grant certiorari - meaning review of a lower court decision. Among these cases were 7 different petitions from 5 different marriage rulings in five states. 

On October 6, 2014, the U.S. Supreme Court denied review in all five cases, opening the door for the freedom to marry in all five states, plus the six other non-marriage states within those circuits. 

The Court could still decide to hear a marriage case if decisions are issued in the 5th, 6th, 9th, and 11th Circuits.

Here is the schedule for this fall's conferences:

  • October 10: Cases distributed 9/17, 9/25
  • October 17: Cases distributed 10/1
  • October 31: Cases distributed 10/8, 10/15
  • November 7: Cases distributed 10/22
  • November 14: Cases distributed 10/29
  • November 25: Cases distributed 11/10
  • December 5: Cases distributed 11/19
  • December 12: Cases distributed 11/25

Four Justices must vote for certiorari in order for a case to receive review. If certiorari is granted in one or more of the marriage petitions this fall, the case will likely be scheduled for an oral argument in the spring of 2015, with a decision expected by late June. 

In the meantime, marriage supporters must continue do everything we can to creating the climate that will maximize our chances of winning no matter which case gets to the Supreme Court and when. 

It is vital that marriage supporters continue sending the message that all of America is ready for the freedom to marry. It is our responsibility to help the courts get the country where the country is ready for the courts to get us: on the right side of history, with the freedom to marry for all.

POLLING on majority support for the freedom to marry:

A National Supermajority:

A February 2014 poll from The Washington Post-ABC News found that 59% of Americans support the freedom to marry for same-sex couples. For the first time, the poll showed that there is a majority support for marriage in every region of the country, as well as plurality support in every age group.

Bipartisan Momentum:

That same poll from The Washington Post/ABC News shows that support for the freedom to marry crosses party lines, with 40% of Republicans favoring marriage for same-sex couples, with 23% strongly supportive. A 2013 poll tracks support among Republicans and GOP-leaning Independents ages 18-49 at 52%.

Coast-to-Coast Support:

The poll also tracked unprecedented levels of support for marriage in every region of the country, with support at 59% in the West, 66% in the Midwest, 68% in the Northeast, and a solid 50% in the South.

Amici Briefs Filed in Support of Certiorari:

32 State Attorneys General

In one brief, led by the Massachusetts Attorney General and including AGs from CA, CT, DE, HI, IL, IA, ME, MD, MA, NM, NM, OR, PA, and VT, these representatives make the case that the Supreme Court should take a case and rule in favor of the freedom to marry. In a separate brief, led by the Colorado Attorney General, representatives also call the question an urgent matter. READ THE MA BRIEF and READ THE CO BRIEF.

Family Organizations

A group of organizations advocating for couples and families who experience real harm every day because of the denial of the freedom to marry and the refusal to treat all marriages equally under the law, including Freedom to Marry, Parents, Families, and Friends of Lesbians and Gays (PFLAG); Family Equality Council; Equality Federation; and COLAGE; submitted this brief featuring the stories of dozens of same-sex couples who face real harms by being denied the freedom to marry. READ THE BRIEF.

30 American Businesses

This group of businesses, including 16 in the Fortune 250, argues that the businesses are forced by marriage bans to discriminate, in defiance of their policies of inclusion and equal opportunity and which must maintain complicated, costly and confusing personnel policies to accommodate the patchwork of discrimination. READ THE BRIEF.

The SUPREME COURT

The national strategy to win marriage for same-sex couples has always focused on a final victory at the U.S. Supreme Court. In the past year, an explosion of marriage litigation - with 41 rulings in favor of marriage for same-sex couples - has clearly demonstrated that the country is ready for the freedom to marry.

The freedom to marry has been steadily winning, from the courts of public opinion, to four major ballot box victories in 2012, to the preponderance of cases winding their way through the judicial system. In each instance, the argument that denying marriage to same-sex couples is unconstitutional and unfair, violating the American values of freedom, liberty and respect, has won over voters, opinion leaders and courts across the country.

Couples should not have to fight for marriages state by state, either to get married or to have their legal marriages respected. While same-sex couples can now or will soon be able to marry in 30 states and the District of Columbia, that freedom is denied in 20 other states.

Every day of denial is a day where American families are harmed - and it's time for the Supreme Court to put an end to this injustice. Most court observers believe the Court will take one or several of these cases this term and decide this question for the entire country once and for all.

The Cases

Herbert v. Kitchen:

10th Circuit Victory 6/25 • District Court Victory 12/20

Filed in the summer of 2013, a federal judge ruled in favor of the Kitchen plaintiffs on Dec. 20, striking down the state’s ban on marriage for same-sex couples. For 16 days, same-sex couples received marriage licenses in Utah, with nearly 1,300 couples marrying, until January 6th, when the U.S. Supreme Court granted a stay. 

The state appealed the original decision to the U.S. Court of Appeals for the 10th Circuit, which on June 25 affirmed the lower court's ruling. Both the state and the plaintiffs agreed in separate petitions to the Supreme Court that the questions raised in Herbert v. Kitchen are urgent and deserving of a prompt review and decision.

The case is led by the National Center for Lesbian Rights, and the legal team includes Peggy A. Tomsic of Magleby & Greenwood; Shannon Minter of NCLR; Mary Bonauto of Gay & Lesbian Advocates & Defenders; and Neal Katyal, a former acting solicitor general.

RESOURCES & DOCUMENTS:

Smith v. Bishop:

10th Circuit Victory 7/18 • District Court Victory 1/14

In January 2014, a federal judge ruled in favor of the freedom to marry in this case, which had been pending for nearly a decade, striking down the marriage ban for same-sex couples.

The judge immediately stayed the ruling, acknowledging a certain challenge by the state. The case was be heard by a three-judge panel in the 10th Circuit Court of Appeals, which ruled in favor of the freedom to marry on July 18.

Parties in the case are now seeking review from the U.S. Supreme Court. All parties involved have agreed that the Supreme Court should grant prompt review and decision in this case.

The case was brought by counsel from Holladay & Chilton PLLC and Joseph T. Thai.

RESOURCES & DOCUMENTS:

Schaefer v. bostic

4th Circuit Victory 7/28 • District Court Victory 2/13

On February 13, 2014, a federal judge ruled in favor of the Bostic plaintiffs, and the case quickly proceeded to the U.S. Court of Appeals for the 4th Circuit. On July 28, 2014, the 4th Circuit affirmed the freedom to marry in the case. 

County Clerk Michéle B. McQuigg, County Clerk Schaefer, and Virginia Attorney General Mark Herring have each filed writs of certiorari with the U.S. Supreme Court in this case that has found Virginia's anti-marriage laws unconstitutional at the federal district court and federal appellate levels. AG Herring is not defending marriage discrimination, but rather seeking review from SCOTUS so the question is resolved as soon as possible. The County Clerks seek to defend the marriage ban.

The case was originally brought by Shuttleworth, Ruloff, Swainn, Haddad & Morecock, P.C., and has been joined by the American Foundation for Equal Rights, Lambda Legal, and the American Civil Liberties Union.

RESOURCES & DOCUMENTS:

Walker v. Wolf

7th Circuit Victory 9/4 • District Court Victory 6/6

On June 6, a federal judge ruled in favor of the freedom to marry, striking down the state’s ban on marriage for same-sex couples and clearing the way for marriages to begin for the next week. 

The state appealed the original decision to the U.S. Court of Appeals for the 7th Circuit, which on September 4 affirmed the lower court's ruling. 

The Wisconsin Attorney General, J.B. Van Hollen, supported by the state of Wisconsin, has filed a Writ of Certiorari with the U.S. Supreme Court.

The case is being led by the American Civil Liberties Union. 

Key Documents:

Baskin v. Bogan:

7th Circuit Victory 9/4 • District Court Victory 6/25

A federal judge ruled in favor of the plaintiffs in three consolidated Indiana marriage cases, filed in the spring of 2013, on June 25, 2014. The ruling struck down the Indiana marriage ban, and for three days, same-sex couples had the freedom to marry in the Hoosier state before the decision was placed on hold. 

The state appealed the decision to the U.S. Court of Appeals for the 7th Circuit, which on September 4 affirmed the lower court's ruling. Indiana Attorney General Greg Zoeller, supported by the state of Indiana, has filed a Writ of Certiorari with the U.S. Supreme Court, and the plaintiffs agree that the Supreme Court should take the case.

The Indiana cases are being led by Lambda Legal, the American Civil Liberties Union, and Indiana Equality Action. 

Key Documents: