Attorney Paul Smith, who helped to litigate the Windsor case that got DOMA struck down at the SCOTUS, has predicted that we will have nationwide marriage equality in 2015. He goes on to state that if legal procedures bog down the legal process it might take until 2016 (but, that is probably the latest date). Many of us here who have been closely watching these cases make their way through the judicial system have made similar comments. At least this attorney seems to agree with us.
From The Advocate:
Same-sex couples could have the right to marry throughout the United States within a year, estimates a leading litigator in marriage equality cases.
That prediction comes in a Vox interview with Paul Smith of the law firm Jenner and Block, who was part of the team that successfully challenged the federal Defense of Marriage Act in the U.S. Supreme Court last year.
As state bans on same-sex marriage continue being struck down and the decisions appealed, the two cases that are farthest along in the appeals process as those from Utah and Virginia. In the best-case scenario, Smith says, appeals courts could decide those this summer and whichever side loses would appeal to the Supreme Court, which would issue a decision in the summer of 2015. Even in a slower scenario, with procedural hang-ups, Smith estimates a Supreme Court decision would come no later than 2016. And he expects the decision would be on the side of marriage equality.
And, from
Vox.com:
By Paul Smith's estimate, it's going to take at most two years for the nation's top court to retry the same-sex marriage issue — and this time, they're expected to settle the issue once and for all.
Smith is arguably the leading LGBT rights litigator in the country. He led the Supreme Court case that struck down state-level bans on gay sex and is part of the law firm, Jenner and Block, that successfully contested the Defense of Marriage Act (DOMA), which banned same-sex marriages at the federal level.
Two of the most advanced cases — from Utah and Virginia — will eventually land on the Fourth and 10th Circuit Courts. Smith estimates that, in a fast scenario, these cases will be decided in the summer, petitioned for appeal in the fall, and decided by the Supreme Court next June. In a slower scenario, the cases could be procedurally stalled and end up in front of the Supreme Court in 2016.
"I think that most observers think there are five [of nine] votes for the pro-equality side — the same five that felt the Defense of Marriage Act was unconstitutional," he says.
There's another, although less likely, possibility. First, the appeals courts could unanimously rule in favor of marriage equality. Then, the Supreme Court could refuse to hear any of the appeals of those cases. That would, in effect, legalize same-sex marriage across the country: if the Supreme Court doesn't agree to hear any of the pro-equality appeals, opponents of same-sex marriage would have no other court to turn to.
Smith, however, remains skeptical of that scenario. "My personal view is that the Supreme Court wants to be the one to decide this issue, not the lower courts," he says. "So the Supreme Court will probably take it."
My own view is that the SCOTUS might want to wait for the Michigan marriage equality case (which is at the Sixth Circuit currently), because that case involved a bench trial. And, Judge Friedman heard testimony from some of the (so-called) anti-gay experts on child rearing, and rejected their arguments that children raised by gays and lesbians had worse outcomes than those of straight parents after that bench trial.
The article continues:
One thing has, however, taken Smith by surprise: how fast it's all happening.
"It's interesting and surprising how quickly courts are getting to the merits of deciding the cases — expediting briefings, expediting cases," Smith says. "Courts usually take their time about things, but somehow there seems to be a perception that this is an issue that needs to be decided fairly quickly."
"There's an old expression: the Supreme Court follows the election results, too," Smith says. "The way constitutional law functions is it responds the popular views, even though sometimes the court is required to do things that are very unpopular."
Indeed, part of what makes LGBT activists so confident in their current position is the growing popular support for LGBT rights. Just four years ago, Gallup found a majority of Americans didn't support same-sex marriage. Today, 55 percent do.
I agree that it is happening surprisingly quickly.