When the U.S. Supreme Court meets for its first conference of the new session next Monday, the Justices will be looking for the perfect lawsuit with which to settle the issue of marriage equality. There's just one problem: that case might not exist.
Last week, Justice Ruth Bader Ginsburg indicated that the Supreme Court would prefer to wait until there are disagreements between circuit courts, which are one level below the Supreme Court. So far, the only federal judge to uphold a marriage ban was a district court judge in Louisiana, and his ruling will have to be reheard by the Fifth Circuit before it's ready for the Supreme Court to consider.
There are seven cases from five states currently petitioning the Supreme Court. If Ginsburg's hint is accurate, it could mean that the Supreme Court will simply avoid making a decision until more cases can pile up on the docket. Or it could mean that the court will simply deny the pending petitions, allowing marriage to resume in those five states, and most likely in neighboring states in the same circuits.
If the Supreme Court truly does want to wait for an appellate court to uphold a marriage ban, they may have a long wait. Several states, such as Colorado and West Virginia, have seen their litigation put on hold pending a Supreme Court decision. That means that while the Supreme Court waits for lower courts to act, the lower courts are waiting for the Supreme Court.
But other states are moving ahead, most notably Florida (where Attorney General Pam Bondi has appealed four cases which all found in favor of marriage equality) and Arkansas (where state officials just filed dueling briefs). Litigation in those states is just beginning the appeals process, which means it could take months — or even years — before cases are ready for the Supreme Court to review.
Get up to speed on the latest marriage news from courts around the country below: