UPDATED Monday 6:21 p.m.  The Sixth Circuit Court on Monday called for a response, due by April 21, to the request for initial en banc hearing in the Michigan case.


On Friday, state officials in Michigan, seeking to move a test case on same-sex marriage onto an even faster track, asked the U.S. Court of Appeals for the Sixth Circuit to put that question before the full, en banc court without waiting for different three-judge panels to rule.  All four states within the Sixth Circuit’s geographic area now have appeals on that issue pending at the appeals court, the new petition noted.

This is the first time that a state which has had its ban on such marriages struck down in a district court has asked for full court review of an appeal.  (Meanwhile, in one of the cases already at the Sixth Circuit, from Ohio, a judge has promised an even broader ruling soon.  See this post, below.)

Federal judges in Michigan, Kentucky, Ohio, and Tennessee have ruled in favor of same-sex marriage claims — sometimes broadly, sometimes more narrowly — and each of those has now been appealed.  The Sixth Circuit has put each of them on an expedited review schedule, but so far has given no indication that this would be done other than by separate three-judge panels.

The normal path for cases in the federal appeals courts begins initially with three-judge panels; then, if the case is of major importance, it may go before the full tribunal.  It takes a majority vote of all of the active judges on the full court to grant such rehearings.  Such en banc review is not common, but it also is not rare.

Arguing that the constitutional controversy over gay and lesbian marriages is of “exceptional importance,” Michigan officials told the Sixth Circuit Friday that “the question’s importance is highlighted by the fact” that each of the four states in that circuit had adopted a similar ban on such marriages and that each has been wholly or partly nullified.

“To resolve this issue swiftly and to preserve the resources of the court and the parties, Michigan petitions for initial hearing en banc,” the state filing said, noting that all four cases from courts within the circuit “are proceeding swiftly in parallel and will have briefing completed within weeks of each other.”

Michigan officials, of course, could only ask for en banc review in their own case, but if the Sixth Circuit took on that case, those from other states would probably be put on hold in the meantime.  While the facts in each of the case do differ, the legal issues are essentially the same in each, and would be the same before an en banc court.  The ruling against the Michigan ban was broader than those against the bans in the other three states.

En banc review, of course, almost certainly would lead to an earlier appeal to the Supreme Court.  Around the country, other appeals courts reviewing same-sex marriage cases are beginning a series of hearings this month and next in front of three-judge panels.

Michigan officials have been fashioning their appeal of a judge’s ruling striking down that state’s ban on a theory that this was an affront to the voters of their state, where some 2.7 million voters approved the ban when it was adopted with a fifty-nine-to-forty-one percent margin ten years ago.

The Michigan case, the state’s petition argued, “presents the question whether one of our most fundamental rights — the right to vote — matters or whether a judge can take an important social issue out of the hands of the voters by concluding it is not something about which reasonable citizens could disagree.”

Among the four states in this circuit, the filing said, “more than 8.6 million people” overall voted to confine marriage rights to couples of one man and one woman.  Voters in Michigan, Kentucky, and Ohio did so in 2004, and in Tennessee in 2006.


Posted in Cases in the Pipeline, Featured, Same-Sex Marriage

Recommended Citation: Lyle Denniston, Plea for quicker ruling on same-sex marriage (UPDATED), SCOTUSblog (Apr. 4, 2014, 7:19 PM), http://www.scotusblog.com/2014/04/plea-for-quicker-ruling-on-same-sex-marriage/