From Scotusblog (Lyle Denniston)
With lawyers moving very rapidly, the number of appeals to the Supreme Court on same-sex marriage rose on Tuesday to seven, as state officials in Indiana and Wisconsin separately challenged a federal appeals court ruling against their bans, and lawyers for the couples planned to file immediate replies. The new cases landed at the Court five days after that decision; the states had the option of taking ninety days to file.
The Court has the option of taking on either or both issues, and it also has the option of putting off any consideration for the time being, despite the heavy pressure from virtually everyone involved in the cases, who contend that the Court should not wait any longer to decide. None of the cases is a mandatory appeal. It would be highly unusual, however, for the Court to pass up all of the cases, when everyone is championing review now.
If the Court opts to take on the controversy anytime up to mid-January, a final ruling could be expected before the new Term is completed late next June.And guess what? The case may well rest not on constitutional law, not on fairness, but on religious freedom. Hello, Hobby Lobby. Mark Silk at Religion News Service on an amicus brief filed for Utah:
The religious organizations make clear in their amicus brief that, besides addressing all relevant Fourteenth Amendment issues, the Utah case uniquely addresses the burden placed on religious liberty by SSM. Quoting from a 2012 letter from a coalition of anti-SSM religious leaders, they write:Judicially redefining marriage powerfully conflicts with religious liberty because, among other reasons, such a dramatic change in the law inevitably will lead to “forcing or pressuring both individuals and religious organizations – throughout their operations, well beyond religious ceremonies – to treat same-sex sexual conduct as the moral equivalent of marital sexual conduct.”…
Utah’s petition provides an opportunity to address whether avoiding religious conflicts and church-state entanglements is a sufficiently weighty reason, alone or combined with other interests, to warrant allowing States to retain the age-old definition of marriage.
If the court did find such avoidance sufficiently weighty, I’ve no doubt that the next legal step would be to ask that all states be forbidden to permit SSM on religious liberty grounds. But the real significance of the brief, it seems to me, is that it represents an acknowledgment that SSM is becoming the law of the land, and that the battle has now moved to the securing of legal exemptions for religious objectors.So, the logic here is that anti-gay archbishop Salvatore Cordileone's religions freedom demands that the state deny me my civil rights (not to mention any non-Catholic church's religious freedom to marry me). The sad thing is, after Hobby Lobby, it's just what might appeal to the 5 Catholics on the bench in DC.