Supreme Court Takes Up Federal Right to Same-Sex Marriage

From the former capital of the Confederacy in Richmond, Virginia, comes the spark for a Supreme Court decision that could extend same-sex marriage to all fifty states within a year.

On August 20, 2014, the Supreme Court stayed the Fourth Circuit decision that struck down Virginia’s ban on same-sex marriage as unconstitutional “pending the timely filing and disposition of a petition for writ of certiorari.” Bostic v Schaefer (4th Cir, July 28, 204, No. 14-1167) 2014 US App Lexis 14298, stay granted sub nom McQuigg v Bostic (Aug. 20, 2014, No. 14A196) 2014 US Lexis 4827.

Both sides in the Bostic case have reportedly urged the Supreme Court to review the decision.

The Supreme Court had to intervene because the Fourth Circuit did not stay its own mandate, as the Tenth Circuit did when it struck down same-sex marriage bans in Utah (Kitchen v Herbert (10^th Cir 2014) 755 F3d 1193, cert filed (Aug. 5, 2014, No. 14-124)) and Oklahoma (Bishop v Smith (10^th Cir, July 18, 2014, Nos. 14-5003, 14-5006) 2014 US App Lexis 13733, cert filed (Aug. 6, 2014, No. 14-136).

The Ninth Circuit stayed a district court decision striking down Idaho’s ban in Latta v Otter (9th Cir, May 20, 2014, No. 13-35420) 2014 US App Lexis 16057 and also has under review the decision upholding Nevada’s ban in Sevcik v Sandoval (D Nev 2012) 911 F Supp 2d 996. Since that decision was rendered, district courts in 14 states have held that same-sex marriage bans violate equal protection and due process guarantees under the Fourteenth Amendment to the U.S. Constitution.

However, a district court recently bucked the national trend and upheld Louisiana’s ban on same-sex marriage in Robicheaux v Caldwell (ED La, Sept. 3, 2014, No. 13-5090) 2014 US Dist Lexis 122528. The district court declined to follow the Ninth Circuit decision in SmithKline Beecham Corp. v Abbot Labs. (9^th Cir 2014) 740 F3d 471, holding that classifications based on sexual orientation are subject to heightened scrutiny.

But, showing that district court decision to be an outlier, the Seventh Circuit just noted the “ultimate convergence” of the Ninth Circuit’s approach with its own approach when it stuck down Indiana’s (and Wisconsin’s) ban in Baskin v Bogan (7^th Cir, Sept. 4, 2014, Nos. 14-2386, 14-2388, 14-2526).

No one knows for sure where all of this is headed, but a decision of some sort is expected from the Supreme Court in the next term, which begins October 6th.

For the latest on same-sex marriage developments, turn to CEB’s Estate Planning & California Probate Reporter. For discussion of estate planning for same-sex couples, see CEB’s California Estate Planning §§4.41-4.64. Also check out CEB’s award-winning book California Domestic Partnerships and Same-Sex Marriage.

Related CEBblog™ posts:

• Going to the Chapel in Another State: IRS Ruling Extends Same-Sex Marriage to Couples Nationwide
• Divorce Equality?
• Going to the Chapel or Staying Alive: Marital Deduction for Registered Domestic Partners after Windsor

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