GAY MARRIAGE: WHICH CASE WILL THE SUPREME COURT CHOOSE?

Original Story: USAToday.com

WASHINGTON — It's getting so you can't tell the potential Supreme Court cases on same-sex marriage without a scorecard.

When the justices sit down for their first fall conference Sept. 29, they will consider the initial requests from states to review decisions striking down gay-marriage bans. Unless they quickly agree to hear one or more cases, those petitions won't be the last.

Lawyers on both sides predict the justices will act soon to decide the issue by next June. That makes it likely they will choose from among the three cases pending. Some of the nation's premier Supreme Court advocates, sensing history in the making, have signed on to represent gay couples or state officials.

"The issue is moving so fast," says John Bursch, a former Michigan solicitor general defending Utah's gay-marriage ban. "People want an answer soon, and I think the court is going to want to give it to them."

Here's the betting line:

UTAH: As the first case decided by a federal district judge and an appeals court panel after the Supreme Court's rulings in June 2013 in favor of gay marriage, Herbert v. Kitchen is the front-runner.

Arguments for: State officials back the ban, guaranteeing a vigorous defense. Former acting U.S. solicitor general Neal Katyal, who has argued 21 cases before the court, has joined the gay couples' legal team, along with Mary Bonauto, who won the nation's first same-sex marriage lawsuit in Massachusetts in 2003.

More than 1,000 couples got married before the district court decision was stayed by the Supreme Court in January, leaving them in a marital limbo that the justices might feel compelled to resolve, having created it themselves.

Among the plaintiffs are couples who want to marry; who were married before the district court ruling was blocked; and who want their Iowa marriage recognized in Utah. That covers all the bases. "This court's resolution of the question presented can mark the end of marriage litigation in all respects," the state's brief says.

Arguments against: There are few, leading most prognosticators to predict Utah's will be one of the cases chosen, if not the only one. "We're not trying to bump out anyone else," Katyal says.

OKLAHOMA: The state has played second fiddle to Utah since January. District and appeals court rulings against the state's gay-marriage ban came a month later; the Supreme Court petition was filed a day later.

Arguments for: The state's gay-marriage ban is particularly stringent; it's a crime to issue a marriage license, and no one has tied the knot. The case, Smith v. Bishop, is being pursued by the court clerk for Tulsa County — someone who actually issues marriage licenses. Stanford Law School professor Jeffrey Fisher, a veteran of 23 high court cases, is arguing for same-sex marriage rights.

Arguments against: The case has had procedural problems on its way to the Supreme Court and is left with only one couple as plaintiffs; the issue of recognizing marriages performed in other states isn't included. It dates back to 2004, a 10-year history the high court might want to avoid. And it comes from the same 10th Circuit as Utah, which could work against Oklahoma if the justices choose more than one case.

VIRGINIA: Same-sex marriage cases in the Old Dominion are unique, giving the justices clear reasons to prefer or reject them.

Arguments for: This is the state of Loving v. Virginia, the 1967 case that struck down state bans on interracial marriage. Its gay-marriage ban is one of the toughest, prohibiting civil unions and blocking the state from recognizing marriages performed elsewhere.

Former U.S. solicitor general Theodore Olson and David Boies, the conservative-liberal tag team that represented California's same-sex couples at the Supreme Court last year, are back for another try. Olson has argued 60 cases at the high court.

The case decided by district and appeals courts, Rainey v. Bostic, includes the lesbian parents of a teenager, which presents the issue of how gay couples' children are treated. The case has been joined with a separate class-action lawsuit filed on behalf of all Virginia's gay couples.

"It would be the kind of case that would resolve a number of outstanding legal issues," state Attorney General Mark Herring says.

Arguments against: Herring, a Democrat elected last November, refused to defend the ban and has argued against it. That's what California officials did in last year's Supreme Court case on Proposition 8; the justices ultimately ruled that those defending the gay-marriage ban lacked standing. In Virginia, it leaves the task to two court clerks represented by private lawyers, including the conservative Alliance Defending Freedom.

"I don't think you want constitutional law being made by default," says John Eastman, a law professor at Chapman University and chairman of the National Organization for Marriage.

OTHER STATES: Six cases from Ohio, Michigan, Kentucky and Tennessee were consolidated at the 6th Circuit Court of Appeals this month, and a ruling could come before the Supreme Court convenes this fall. Cases from Indiana and Wisconsin were heard at the 7th Circuit on Tuesday. Appeals from Idaho and Nevada are scheduled before the 9th Circuit early next month. Still more cases are in the pipeline, including from Texas; the 5th Circuit would be most likely to rule against gay marriage and create a split among appeals courts.

Arguments for: The justices might want to hear and benefit from additional appeals courts. That could include important opinions by Judges Jeffrey Sutton in the 6th Circuit and Richard Posner in the 7th, where a three-judge panel appears headed toward the first unanimous judgment against state bans.

Arguments against: Even if the justices don't wait for more rulings before scheduling a case, they are certain to get the benefit of them before they rule. Waiting to choose a case for Supreme Court review would leave states and same-sex couples in limbo — possibly until the 2015 term.

MULTIPLE CASES: When an issue is of paramount importance, the court frequently grants more than one case. The leading example: Brown v. Board of Education (1954), which combined cases from Kansas, South Carolina, Virginia, Delaware and the District of Columbia. This year, the court heard two cases on the new health care law's "contraception mandate" and two on cellphone privacy.

Arguments for: More cases offer more plaintiffs to consider, more arguments to present and more advocates at the lectern. "Given all of these permutations, this may be a situation in which a belt-and-suspenders approach – that is, granting multiple cases – is the most prudent course," says the Oklahoma couple's brief seeking Supreme Court review.

Arguments against: Simplicity. The court doesn't always believe more is better. Faced with multiple choices challenging the federal Defense of Marriage Act, it chose Edie Windsor's case in New York and no other — then issued a landmark decision that forced the government to recognize same-sex marriages.

NONE OF THE ABOVE: If the federal circuit courts continue to rule in favor of same-sex marriage, the justices could just sit on their hands and let groups of states go that way gradually.

Arguments for: Why impose a verdict from on high? All states in the 1st and 2nd Circuits already allow gay marriage. Lifting the stays in the 4th and 10th Circuits would continue the trend.

Arguments against: It could take years before all 11 circuits have acted, and they might not go the same way. The country would be divided, leaving some gay couples without the rights and benefits enjoyed by others. And the issue of same-sex marriage would lack the imprimatur of the Supreme Court — whichever way it rules.