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Analysis: Paths to same-sex marriage review (UPDATED)

UPDATED 4:10 p.m.   Lawyers representing the challengers in all six of the cases decided by the Sixth Circuit have agreed, legal sources said Friday, that they will each go directly to the Supreme Court, bypassing en banc review requests.  Petitions in the Supreme Court may be filed as early as late next week, according to those sources.  That probably would head off any vote, called at the request of any judge on the Sixth Circuit, on whether to move to en banc review.


Depending upon how fast lawyers choose to move, the issue of same-sex marriage could be back before the Supreme Court in a matter of days.  So far, only one option has been closed off.  The remaining options have some, perhaps considerable, chances of success.

The decision Thursday by the U.S. Court of Appeals for the Sixth Circuit, upholding bans on same-sex marriage in four states, has clearly increased the prospect that the Justices will now take on one or more appeals — perhaps even in time for decision in the current Term.  Already, lawyers representing some of the same-sex couples involved have promised a swift appeal to the Supreme Court.

A direct challenge to the Sixth Circuit’s ruling is one of a handful of potential ways to try to persuade the Court to step in now.

When the Court on October 6 turned down seven petitions from five states, there was then no split in final decisions among federal courts of appeals in the most recent round of same-sex marriage lawsuits; all had struck down state bans.  But the actual date of those denials is now decisive in taking away one option to appeal to the Court.

Under the Court’s rules, a lawyer in any one of those cases could have asked the Justices to reconsider the denial.  That is a tactic that almost never works, but there is an important modern precedent for doing so:  after the Supreme Court had turned down a major case on the rights of war-on-terrorism detainees at Guantanamo Bay in 2007, it changed its mind, accepted review, and went on to issue a major constitutional ruling in 2008.

Before the Sixth Circuit’s ruling on same-sex marriage, such a rehearing plea probably would have been futile.  The option is no longer available: the Court’s Rule 44 says that a petition for rehearing of the denial of a petition must be filed within twenty-five days after the denial order was issued.  And the rule specifies that the time “will not be extended.”  So, for the seven petitions, that cutoff date has come and gone.

What other options remain?

There is the option of asking the Sixth Circuit itself to reconsider its ruling before the full bench (“en banc”) as a prelude to going on to the Supreme Court, but that would slow down the process considerably and very likely would delay the issue beyond the Court’s current Term.  And, it appears, at least some of the lawyers and their clients have already ruled that out.

Assuming a direct approach to the Supreme Court, here are some alternatives:

Option 1:  File one or more petitions for review, focusing on the Sixth Circuit’s ruling.  While the Court’s rules allow ninety days before such a petition must be filed, no one expects any lawyer interested in prompt review to take that much time.  Petitions could be filed very quickly because the lawyers involved are fully familiar with the issues, and need not write an exhaustive petition at this stage.  It basically would be a matter of rearranging arguments already advanced in lower courts and then getting the documents printed — tasks that can be done very rapidly.  Lawyers handling the several cases will be planning jointly, but that, too, need not take much time.

Option 2: File a petition for review of a ruling by a different federal appeals court that has not yet been appealed to the Supreme Court and for which the ninety-day filing deadline has not yet been reached.  There was not much promise of gaining Supreme Court review of such a case when there was no split in the appeals courts; now there is.  Cases decided in the Ninth Circuit, for example, would be open to this option, particularly a case from Idaho.  That is an option that might well be attracted to officials in a state who want to continue to strongly defend their same-sex marriage bans.

Option 3: Ask the Supreme Court to grant review now of a case that is now pending in a federal appeals court, but has not yet been decided there.  Such a petition for “certiorari before judgment” is allowed, as long as the case has formally been filed in a federal appeals court.  That is already the situation for cases from Louisiana and Texas, in the Fifth Circuit; from Kansas, in the Tenth Circuit, and from Florida, in the Eleventh Circuit.  It will soon be true in other courts of appeals, such as a Puerto Rico case in the First Circuit.

Among those three options, Option 1 might have the most promise of gaining Supreme Court review because the Sixth Circuit’s decision is the one that broke the pattern, because it involves an array of cases from four states, raising the constitutionality of bans on both new same-sex marriages and the official state recognition of out-of-state same-sex marriages, because it was written by a highly respected court of appeals judge (Jeffrey S. Sutton), because it brought a stirring dissent by another well-regarded jurist (Senior Circuit Judge Martha Craig Daughtrey), and because the opinions swept across all of the issues that have been raised in case after case — even the rather obscure question whether a refusal to recognize an out-of-state same-sex marriage violates the constitutional right to travel, and the emotional question of whether a death certificate for a same-sex spouse who has now died should show that there was a surviving spouse.

The time to prepare the papers in pursuing any one of the three options would not vary much between them.

One thing, though, needs to be stressed:  the Court itself still retains the option of choosing not to get involved.  However, a month after it made that choice on October 6, the situation has changed dramatically, and that option has certainly diminished, if it hasn’t actually lapsed as a realistic matter.

If any petition gets to the Court within the next few weeks (at the outside), it could be put before the Justices in time for a hearing and decision in the current Term.  The seven petitions denied on October 6 were moved along at a much faster pace than normal.

Recommended Citation: Lyle Denniston, Analysis: Paths to same-sex marriage review (UPDATED), SCOTUSblog (Nov. 7, 2014, 8:29 AM),