SCOTUS same-sex marriage decision could come Tuesday

(WISH Photo)

INDIANAPOLIS (WISH) – A decision on whether the United States Supreme Court will agree to take up the issue of same-sex marriage next year may now be just hours away. The court’s scheduling conference Monday was the first in nearly four months, and included Indiana’s high-profile appeal.

Four of the nine justices must vote in favor of a case during the closed-door scheduling conference in order for it to be heard. Many expect the court to announce the cases it will hear sometime Tuesday morning.

Among those waiting with baited breath Monday were Tara and Melody Betterman-Layne. Both are plaintiffs in Indiana’s case.

“We were married in just a small, intimate ceremony in Central Park [in New York City] in 2012,” Tara said. “And, it was very deflating coming back to Indiana. We felt like we should be celebrating, but it just didn’t seem like a celebration.”

The Betterman-Layne’s, who are also business partners, sat in their near south side office Monday filled with cautious optimism and anticipation.

“This is an important moment in history,” Melody said. “Every lower court victory makes me a lot more impatient. The momentum has picked up, and so has my impatience.”

On Monday, Justices considered same-sex marriage appeals from five states: Indiana, Wisconsin, Virginia, Utah and Oklahoma. Each asks the high court to settle the question nationally, once and for all.

And, American Civil Liberties Union Legal Director Ken Falk, who represents the Betterman-Layne’s and other same-sex couples, thinks the Justices will.

But, no one really knows which case the court will take, or when.

“They may take one. They may take more than one. They may decide to hold the matter over for other conferences. We just don’t know,” Falk told 24-Hour News 8.

Justices would be likely to select the most “nationally representative” case, Falk said. And, not all are likely to agree that Indiana’s case fits the bill.

If that’s the case, it’s likely the Court would allow Indiana to keep “kicking the can down the road,” Falk said.

“If they take one of the cases, what the court probably will do is not rule on the request for review in the other cases, hold that review as pending, keeping stays in place, until after the decision on marriage probably next June. At that point, they will affirm or reverse the other cases, based on its decisions,” he said.

That would be fine with the Betterman-Layne’s.

“It would be nice for us to be selected, but we would be happy for whoever–whether it be Utah or any of the other states,” Tara Betterman-Layne said.

But, some aren’t convinced that will happen with any of the five cases now pending before the high court. Though the Supreme Court tends to more readily accept controversial issues, it is often less likely to do so without conflicting rulings from lower courts.

“If there is a conflict between the Circuits, between the federal courts, that makes an issue ripe for consideration. But, there really is no conflict here. Every appellate court that has decided this issue has found that states must recognize the validly performed marriages of sister states,” said Indiana University Robert H. McKinney School of Law Professor Jennifer Drobac.

That could mean Justices will decide to “deny certorari” and refuse to hear any of the cases right now.

“Given that every Circuit that has decided in favor of recognition of these marriages, the Court may want to duck this issue completely and say–not our fault–the appellate courts are doing this, and we don’t think it’s timely for a Supreme Court decision on this,” Drobac said.

That decision, however, would still spark action in Indiana. If the state’s appeal is denied, same sex-marriage could become legal again in Indiana as early as next week, because it would invalidate the current stay on a 7th Circuit Court ruling overturning Indiana’s same-sex marriage ban.

“Denial of cert means the dominoes start falling,” Drobac said. “Stays that have been in effect expire. To deny cert means there will be activity. But, [the Supreme Court] is not responsible for the activity they didn’t set up, so they’re not going to take the heat. That could make it less likely that they’ll agree to hear the case.”

Certorari denials from Monday’s scheduling conference are expected to be announced starting October 6.

“I guess I would see that as a small victory,” said Tara Betterman-Layne. “But, I really would like to see the Supreme Court rule on this so we’re not playing the ‘are we married here’ game every time we cross a state line.”

24-Hour News 8’s calls to traditional marriage support groups like Advance America and the Indiana Family Institute were not returned Monday.

Indiana’s Attorney General Greg Zoeller, who filed the appeal to the Supreme Court is also hoping the case is heard, but had no further comment through a spokesman Monday.

“We’re not going to try gazing into the crystal ball to prognosticate,” said spokesman Bryan Corbin. “We’re watching to see what the court does like everyone else.”

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