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Same-sex marriage a possible coming attraction for Supreme Court

The U.S. Supreme Court
The U.S. Supreme Court McClatchy

A North Carolina traffic stop will ease Supreme Court justices into their new term Monday, but things will accelerate from there.

Over the next nine months, the court could make history on same-sex marriage rights. Justices will clarify the rules governing political redistricting, violent speech and prison grooming standards. They will untangle whether a Florida fisherman destroyed evidence by throwing fish overboard.

And, one way or another, they will surprise people. They always do.

“However slow the term is starting, it could explode by the end of the year,” noted Steven R. Shapiro, legal director of the American Civil Liberties Union.

The court’s 2014 term that starts Monday and concludes June 30, 2015, will be the 10th under the leadership of Chief Justice John Roberts Jr. The 59-year-old Roberts has instigated past court shockers himself, as when he upheld in 2012 a key part of the Obama administration’s health care law.

Even with 11 new cases added Thursday, the court has only filled about three-quarters of its expected docket for the 2014 term. The court typically hears and decides about 75 cases each term, selected from some 9,000 petitions.

The constitutional question that could define the 2014 term, concerning same-sex marriage, is one of several still lurking around the corner. On Sept. 29, the justices had up for initial consideration seven petitions concerning marriage restrictions in five states. The petitions will get a closer look during at least one other conference before an eventual public decision whether to schedule oral arguments.

“It’s not a foregone conclusion,” said David A. Strauss, a professor at the University of Chicago Law School, “but most people think they will take up the issue.”

It could take several weeks, as justices must sort through multiple options, including whether to address one or two distinct issues: a state’s ban on same-sex marriages, and a state’s refusal to recognize same-sex marriages conducted elsewhere.

Another high-stakes challenge to the Obama administration’s health care subsidies could be added to the 2014 docket as well. Thousands of other petitions also will try to beat the odds, like one filed in recent days by the Sacramento-based Pacific Legal Foundation challenging a lower court’s upholding of protections for the endangered Delta smelt in California.

For now, the cases scheduled for hour-long oral arguments present a hodgepodge of constitutional and statutory problems.

“In the past several terms, the court has had quite a number of blockbuster decisions,” said Caroline Fredrickson, president of the liberal American Constitution Society. “It’s hard to know whether this will be another term like those.”

The inaugural case Monday, Heien v. North Carolina, started in April 2009 when a Sheriff’s Department sergeant in Surry County, about 90 miles north of Charlotte, N.C., stopped a car that had only one working brake light. The officer thought, mistakenly, that state law required two working brake lights.

The officer grew suspicious of the driver and the passenger, Nicholas Brady Heien. He searched the car for about 40 minutes and eventually discovered a bag filled with two ounces of cocaine. The question facing the court is whether a law enforcement officer’s mistaken understanding of the law renders the subsequent search illegal.

“Only by refusing to excuse such mistakes can officers be properly deterred from engaging in such overly ambitious readings of the traffic code, at the expense of individual liberty,” Stanford Law School Professor Jeffrey L. Fisher, the attorney representing Heien before the high court, wrote in a brief.

Robert C. Montgomery, North Carolina’s senior deputy attorney general, countered that penalizing mistaken understandings of the law “would inject unwarranted uncertainty into the daily actions of law enforcement officials.”

In other cases, the court will:

– Consider whether the Arkansas Department of Corrections violated the religious rights of Muslim inmate Gregory Houston Holt, also known as Abdul Maalik Muhammad, by prohibiting him from growing a half-inch beard. Arkansas officials worry about weapons being hidden in beards, but other states and the federal government allow the beards, and court-watchers expect Arkansas to lose.

– Figure out whether Holmes Beach, Fla., fisherman John L. Yates violated a federal law banning the destruction of any “record, document or tangible object” in an effort to impede an investigation. Yates ordered crewmen to throw back into the Gulf of Mexico red grouper that an inspector thought were too small. Though the fish-toss may not sound like the document-shredding lawmakers had in mind, this could prove a close call.

– Decide whether Pennsylvania resident Anthony D. Elonis was properly convicted of threatening his wife with a series of angry Facebook posts. A would-be rapper, Elonis published declarations like, “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying.” The question for the court is whether a jury must conclude both that Elonis had the intent to threaten and that a reasonable listener would interpret the statement as a threat.

Some predictions are easy.

Many cases will unite the justices. For all the fuss about a bitterly divided court, 66 percent of all decisions last term were unanimous. Only 10 percent were decided by a 5-4 margin.

In legal and political circles, meanwhile, discussions will continue about whether a retirement announcement will be made by term’s end. At age 81, Justice Ruth Bader Ginsburg finds herself the center of most speculation.

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