Third same-sex marriage case is Court-bound (UPDATED)
UPDATE 5:15 p.m. The list of court rulings striking down state same-sex marriage bans lengthened again on Monday, as a state judge in Fort Lauderdale, Fla., found that state’s law unconstitutional. The ruling (found here) is the third by a state judge in Florida; the issue is now moving through appeals, so the Fort Lauderdale judge put the new ruling on hold. Meanwhile, the U.S. Court of Appeals for the Third Circuit denied rehearing in a Pennsylvania case, perhaps bringing to an end a single county clerk’s attempt to make a defense of that state’s same-sex marriage ban, struck down earlier by a federal judge. State officials chose not to continue a defense.
A county clerk in Oklahoma is planning to take a same-sex marriage case to the Supreme Court — the third such case on the way to the Justices, probably in time for a reaction during the Term that opens in October. Lawyers for Tulsa County Clerk Sally Howe Smith announced Friday that they will seek to go directly to the Supreme Court, bypassing any chance for further review in the U.S. Court of Appeals for the Tenth Circuit.
When the Tenth Circuit on July 18 struck down Oklahoma’s ban, it put its ruling on hold pending a petition for review that it apparently assumed would be filed in the Supreme Court. Now, Clerk Smith’s attorneys have confirmed that she will be pursuing such an appeal.
The Oklahoma clerk is represented by attorneys with a legal advocacy group, Alliance Defending Freedom. That same group also represents a county clerk in Virginia, and they announced last week that they will be filing that case in the Supreme Court in coming weeks. They have asked the Fourth Circuit to postpone a decision against the Virginia ban, to give the clerk time to go to the Supreme Court.
The state of Utah had announced earlier that it would appeal to the Supreme Court from a separate Tenth Circuit decision that nullified that state’s ban. Other federal appeals courts are now reviewing similar provisions in other states, so there could be additional appeals.
Although the Supreme Court has complete discretion to choose which, if any, case it would agree to review on the same-sex marriage question, the chances are that the Justices would prefer a case that is appealed by state officials, rather than by a clerk for a single county. A petition by a state would ordinarily be regarded as a more important test case, because of the respect the Court ordinarily shows to state governments. It is their laws that are at stake.
The Oklahoma case is somewhat narrower in scope than the cases from Virginia and Utah, because the only part of the Oklahoma ban that was struck down was a prohibition on new same-sex marriages. In the other cases, appeals courts also found unconstitutional state provisions that deny recognition of same-sex marriages that were legally performed in other states for state residents.
With at least three of these cases due at the Court sometime this summer or in early fall, the underlying constitutional controversy apparently will be ready for the Court to consider in its next Term. If it were to grant review any time up through next January, a final decision could be expected by early next summer.