Supreme Court delays action on gay marriage

Richard Wolf | USA TODAY

WASHINGTON — The Supreme Court delayed action Friday on its most closely watched deliberation -- whether to rule this year on states' remaining bans against same-sex marriage.

After considering petitions filed by gay and lesbian couples in five states that still prohibit gay and lesbian nuptials, the justices did not agree to hear any of them. Their decision could come next week.

If the issue is to be resolved during the court term ending in June, the justices must choose to hear one or more cases before the end of the month. That would allow time for briefs to be filed, oral arguments heard and a ruling rendered by late June.

Although the decision did not come Friday, the justices' hands most likely will be forced by a split among federal appellate courts, created when the U.S. Court of Appeals for the 6th Circuit upheld four states' marriage bans in November. While gays and lesbians can marry in 36 states, most recently including Florida, the practice is banned in Michigan, Ohio, Kentucky and Tennessee, along with 10 other states.

The high court sidestepped the issue in October, when it let stand appeals court rulings striking down gay marriage bans in Virginia, Indiana, Wisconsin, Oklahoma and Utah. Those rulings and a later appeals court decision affecting Idaho and Nevada drew in neighboring states as well. As a result, more than 70% of Americans live in states where gay marriages are legal.

If the justices select a case to decide whether gays and lesbians have a constitutional right to marry, it would become even more of a landmark than those decided by the court in 2013 -- United States v. Windsor, which forced the federal government to recognize gay marriages, and Hollingsworth v. Perry, which made California the 13th state to allow them.

The justices appear as split now as they were then, when Justice Anthony Kennedy wrote the 5-4 decision striking down a key part of the federal Defense of Marriage Act. In dissent, Justice Antonin Scalia warned that it would lead to exactly what has happened since.

But in a series of procedural moves, they have allowed same-sex marriage to proliferate, particularly by refusing to hear five states' appeals in October. They also refused to stop gay and lesbian marriages in Idaho while the state challenges the verdict of the 9th Circuit Court of Appeals -- something they had done last year in Utah.

Couples in all four states affected by the 6th Circuit decision have asked the Supreme Court to hear their appeal. State officials in Michigan, Ohio and Kentucky, though victorious, agreed that the justices should weigh in. And in Louisiana, gay couples and state officials sought to have their case considered, even though it remains pending at the 5th Circuit Court of Appeals. Oral arguments there were heard Friday.

The five states are among 14 where gay marriage remains against the law. The others are Alabama, Arkansas, Georgia, Mississippi, Missouri, Nebraska, North Dakota, South Dakota and Texas.