Is Same-Sex Marriage on the Fast Track Back to the Supreme Court?

With the current Supreme Court term at its halfway point, many court watchers are already turning their eyes to 2014-2015. That is when the next round of same-sex marriage cases are slated to hit the country’s highest court.

Of the 33 states that currently prohibit same-sex marriage, lawsuits are currently pending in every state except for Alaska, Georgia, Indiana, Montana, Nebraska, North and South Dakota, and Wyoming. Several cases have already reached the federal appellate court level, with oral arguments before the 10th Circuit Court of Appeals scheduled to begin this spring

The Court’s 2013 decisions in addressed several key issues regarding same-sex rights. In United States v. Windsor, the majority held that the Defense of Marriage Act (DOMA) — which defined “marriage” for all purposes under federal law as “only a legal union between one man and one woman as husband and wife” — was unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment of the U.S. Constitution. In Hollingsworth v. Perry, the Court struck down California’s Proposition 8, which banned same-sex marriage.

Despite these historic decisions, the most fundamental question remains unanswered — do gays and lesbians had a constitutional right to marry?

So far, the federal courts have overwhelmingly responded “yes.” Most recently, a federal court judge in Virginia rejected arguments that restricting marriage to heterosexuals partners is in the best interests of children, specifically noting that the plaintiffs in the case had successfully raised a 16-year-old daughter.

“Like the thousands of children being raised by same-sex couples, [Emily] is needlessly deprived of the protection, the stability, the recognition and the legitimacy that marriage conveys,” U.S. District Judge Arenda Wright Allen wrote. Though the state has “compelling interests in protecting and supporting our children,” they are “not furthered by a prohibition on same-sex marriage.”

Federal judges in Utah and Oklahoma have reached similar conclusions on same-sex marriage rights. If any of these cases make it through the appellate process this summer, the losing party will have 90 days to appeal the decision to the Supreme Court, and the petition for certiorari would most likely be considered at the start of the October 2014 term.

The justices likely did not anticipate the controversial issue would land back in their laps so quickly. However, should the Court agree to weigh in on the issue once and for all, 2015 could bring yet another historic same-sex marriage decision.