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Could the Supreme Court definitively decide on same-sex marriage this year?




WASHINGTON, DC - JUNE 26:  Gay rights activist Vin Testa of DC, waves a flag  in front of the U.S. Supreme Court building, June 26, 2013 in Washington DC. Today the high court is expected to rule on California's Proposition 8, the controversial ballot initiative that defines marriage as between a man and a woman  (Photo by Mark Wilson/Getty Images)
WASHINGTON, DC - JUNE 26: Gay rights activist Vin Testa of DC, waves a flag in front of the U.S. Supreme Court building, June 26, 2013 in Washington DC. Today the high court is expected to rule on California's Proposition 8, the controversial ballot initiative that defines marriage as between a man and a woman (Photo by Mark Wilson/Getty Images)
Mark Wilson/Getty Images

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Starting Monday, the U.S. Supreme Court justices meet this week to decide which cases to take up in the coming term that begins just days from now.

One huge issue on the table -- same-sex marriage. 

While the high court ruled last year on California's ban on same-sex marriage, that decision didn't go beyond the Golden State. 

Over the past year, more than 80 lawsuits around the country were filed in support of gay marriage in various states.

Douglas NeJaime, professor of law at UC-Irvine, explains what the court could possibly do and what questions it sidestepped last year.

INTERVIEW HIGHLIGHTS

SCOTUS ruled last year on California's same-sex marriage. Remind us why that did that not go beyond the Golden State?

California's decision was based on whether the proponents of Prop 8 had standing to appeal the lower court decision and because the U.S. Supreme Court said they didn’t and the State of California was not appealing those decisions, it left in place the 2010 decision of Judge Walker that struck down Prop 8. So that decision doesn’t go beyond California's constitutional ban on same-sex marriage, which left this other question of all these other state bans.

So Monday the justices start to decide what cases to take on. In the past year over 80 lawsuits were filed in support of gay marriage. How many cases could the justices take on?

As many as they want. We were in a similar situation a few years back when they were deciding which case to take on regarding the federal Defense of Marriage Act, which they struck down. While they are starting to meet now, they don’t necessarily have to do anything and there will be more cases coming down the pipeline. We're waiting for more courts to rule on this question so the justices can wait and see.

Which cases would you be watching as likely ones to be taken up by the high court?

There's been a number of petitions where the court has been asked to take the cases; in each one the lawyers are making their case of why theirs is the best case to take. A lot of folks are looking at the case out of Utah, which was the first decision we had striking down a same sex marriage ban after last term's decision striking down the Defense of Marriage Act. That’s a relatively straight-forward case because the state has been defending the ban, unlike what we saw in California.

Any attorney out there who has worked on a case like this is lobbying hard to get the high court to pay attention. How much sway do they have?

What they're trying to do is make the court see why their case is the best vehicle with which to decide this question. And the court will ultimately make its own decision and have multiple cases before it and at the heart of these cases is the same question: Can a state restrict marriage to exclude same sex couples? The court may be waiting to see if a different court of appeals actually comes out a different way. So far all we've had is decisions striking down same-sex marriage bans. We are still waiting to hear from the 6th circuit and the 9th circuit.

What would it mean for same-sex marriage nationwide if SCOTUS decides not to hear any of these cases?

As of right now if they decide not to hear those cases then the stays for those decisions would be lifted so in the states where the marriage bans were struck down by courts of appeals, same-sex couples would be able to marry. So if decisions keep going in this direction of striking down same-sex marriage bans, the Supreme Court could do nothing, and it would keep bringing same-sex marriage to more states.

If they were to take up one or more of these cases, what sense do you have of how they may rule?

A lot of us have looked at the court and what they did with the Defense of Marriage Act and while that was about a federal law that didn't recognize couples' state law marriages, the decision of 5-4 and the opinion by Justice Kennedy has reasoning that seems to apply to these state same-sex marriage bans. What judges in courts of appeals up until this point have been doing is saying, "If the federal Defense of Marriage Act couldn't stand, we don't see any reason why a state same-sex marriage ban would stand." So a lot of folks think the court may come out the same way.

What is the deadline SCOTUS has to decide if they will take any of these cases?

The court can keep meeting for months ahead as long as they can still calendar it for a spring argument, which they would then decide the case likely by the end of June. We should stay tuned at least for the next few months.