A San Francisco sheriff’s deputy confronts opponents of same-sex marriage in San Francisco, California, in 2010.
WASHINGTON — The group behind Nevada’s constitutional amendment limiting marriage to one man and one woman has asked the U.S. Supreme Court to hear an appeal of a challenge to the measure, a week after a federal trial court judge upheld the amendment.
The move on Wednesday to ask the Supreme Court to accept the case before an appeals court has rendered its judgment in a matter, called a request for certiorari before judgment, is unusual. As the court is scheduled to consider 10 other petitions relating to cases that address the rights of same-sex couples on Friday, the filing — and its timing — does raise questions and could cause complications for the court and marriage equality advocates.
The 10 previously filed petitions involve cases addressing three laws: the federal definition of marriage contained in the Defense of Marriage Act; California’s Proposition 8 marriage amendment; and Arizona’s Section O, which would rescind domestic partner benefits for state employees.
There are several possible reasons why the group, the Coalition for the Protection of Marriage, wants to bypass the appeals court and go directly to the Supreme Court at this time, one made explicit in petition filed with the Supreme Court by the group and others implicit in its filing.
First, and most simply, people supporting maintaining marriage as only the union of one man and one woman won in this case.
In the underlying cases of all 10 other petitions before the court, the side favored by marriage equality advocates was successful. As the coalition writes in its filing before the court, “[T]his case has developed most comprehensively and thoroughly the societal interests justifying preservation of marriage’s man-woman meaning.” Getting a ruling before the justices that supports a countervailing view from the other 10 petitions, even if the court doesn’t accept the case, could be helpful for opponents of marriage equality in their framing of the cases.
The coalition likely also wouldn’t mind bypassing the Ninth Circuit Court of Appeals, where an appeal of the trial court ruling would be heard, because the court is generally seen as more liberal than most appeals courts and has issued several rulings in recent years favoring LGBT rights and, specifically, same-sex couples’ rights.
The stated reason given by the group is about the underlying legal issues at play in all of the relevant cases:
Of the “marriage” cases now before this Court, this case is optimal for resolving the fundamental issue for several reasons. This case is the only one that cannot be resolved without answering the fundamental issue.
In other words, the coalition is saying to the court, “This is the case you should take if you want to resolve the marriage question right now, once and for all.” Because Nevada, unlike many other states without marriage equality, has offered substantially similar benefits to same-sex couples as it offers to opposite-sex married couples, however, there are ways the court could resolve the case without guaranteeing a right for same-sex couples to marry anywhere. The case could, though, more directly answer the question about whether same-sex couples have a constitutional right to marry than courts of appeals have done in any other cases.
The coalition is attempting to push the larger issue in front of the court at a time when some marriage equality advocates are attempting to move related, but less direct, issues in front of the court through cases that wouldn’t require the sort of broad answer to the marriage question that the coalition says is required by the Nevada case.
Finally, by filing the petition on Wednesday, it is possible the coalition is attempting to delay further the court’s decision on which of the cases related to same-sex couples’ constitutional rights it will be taking this year. In the past this year, it has appeared that the court held off on considering any of the petitions until all of them were fully briefed. And, with the court scheduled to discuss the 10 petitions at its conference on Friday, this petition could be a last-ditch effort to hold off a decision on which of those to hear.
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