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Fast-track plea on same-sex marriage denied

A plea by state officials in Michigan to put their appeal on the same-sex marriage issue on a faster track was denied on Monday by the U.S. Court of Appeals for the Sixth Circuit.  The denial of the request to send the case to the full court, instead of to a three-judge panel, was unanimous.

Earlier this month, Michigan officials argued that it would speed up the process of review of a federal judge’s decision striking down a state ban on same-sex marriage if the case went immediately to all active members of the court of appeals.  The couples who had successfully challenged the ban resisted that suggestion, saying that en banc review would, in fact, slow down the process.

Although the constitutionality of such bans is now under review in multiple federal appeals courts, so far each case is being handled in the usual fashion — by a three-judge panel.  After such a panel rules, the option would be open to attempt to take the case before the en banc court, but that requires a majority vote of all active judges.

There is now widespread interest in which case on the issue reaches the Supreme Court first.  But that is not predictable, given that each appeals court is free to take such time as it needs to decide each case.

In the Sixth Circuit, federal district judges in all four states served by that court — Michigan, Kentucky, Ohio, and Tennessee — have struck down such bans, either narrowly or broadly.  The Michigan case led to one of the broadest rulings.

Meanwhile, that circuit has put on hold while an appeal goes forward the federal judge’s ruling in the Tennessee case.  In that decision, the judge struck down a marriage ban as it applied to three same-sex couples who were legally married in other states, but whose marriages were not recognized in Tennessee because of the ban.

A motions panel of the Sixth Circuit said in an order on Friday that “the law in this area is so unsettled” that the public interest and the interests of the parties “would be best served” by postponing the decision.  It said it was transferring the case to a merits panel “for expedited consideration.”

Recommended Citation: Lyle Denniston, Fast-track plea on same-sex marriage denied, SCOTUSblog (Apr. 28, 2014, 4:39 PM),