Sooner, Rather Than Later...

or, Why the Supreme Court Should Take the Case(s).

Linda Greenhouse again performs an excellent role -- not as a woman writer, not as a Jewish-American writer -- but as a legal writer analyzing the current progress to end the gender discrimination in civil marriage.

She looks at the recent circuit court decisions, which have been appealed to the United States Supreme Court, and marvels at the progress made in the past decades.

But Greenhouse comes from a progressive background, and she does not really spell out what the court decisions mean to the people who live in the affected jurisdictions.

In Wisconsin, for example, Judge Posner's recent decision that Greenhouse cites did not make gay marriage accessible.  It might be legal, based on the court decision, but the effect is pending appeal.

If the Supreme Court decides not to accept these cases this term, it seems to me that the most recent court ruling stands:  that gay people should be allowed to file into their county clerk's office and be treated the same same as two people with different genitals.  No more gender discrimination, according to Judge Posner's ruling.

That is likely not going to happen.
Voluntarily, the conservative counties are not going to issue such licenses.  They are going to want to wait until the Supreme Court tells them they have to.

The justices will take up the cases at their closed-door conference on Sept. 29, a week before the start of the new term on the first Monday in October. The situation is unusual. Most of the parties want, and many people expect, the court to grant review in at least one of the cases. But these appeals lack the primary marker the justices look for in constructing their docket: an issue that has produced conflicting opinions by the federal appeals courts. There is no conflict among the circuits, at least not yet; the states have lost in the Fourth and Tenth Circuits as well as the Seventh. Cases are pending in other circuits, and on Sept. 3, a federal district judge in Louisiana upheld that state’s same-sex marriage ban. The gay couples who brought that case, Robicheaux v. Caldwell have appealed. The conservative Fifth Circuit, which includes Louisiana, would not be a same-sex marriage supporter’s circuit of choice.

So it would come as no great surprise if the Supreme Court takes a pass this term. All my court-watching experience tells me that. But still, it’s hard to resist the sense that there is a moment at hand. You could almost call it a parade.

I understand Greenhouse's deference to time.  To not "forcing" something on people they are unwilling or unable yet to accept.

But eventually, someone is going to have to do it.  To stand up to the religious who want to enshrine their personal beliefs in civil law, and to those who believe the majority rules.