Same-sex marriage: A simple appeal (UPDATED)
on Nov 17, 2014 at 3:04 pm
FURTHER UPDATE Tuesday 1:24 p.m. The Michigan petition — DeBoer v. Snyder — has been docketed as 14-571. The Kentucky petition — Love v. Beshear — has been docketed as 14-574. All four of the challenges to the Sixth Circuit’s decision are now formally at the Court, awaiting state responses.
UPDATED Monday 6:05 p.m. On Friday, the blog posted a story on same-sex marriage filings that day. It did not have a link to the petition in the Tennessee case. It can be read here.
The same-sex marriage constitutional controversy reached the Supreme Court on Monday in its simplest form, testing the constitutionality of a state’s denial of a right to marry for same-sex couples. That is the sole issue raised in a new petition filed by a Michigan lesbian couple who want to marry and want the right for both parents to adopt their three children. Michigan denies both.
As has happened with other cases that have reached the Court on the controversy, the lawyers for the Michigan couple contended that their case was the ideal one for review. Among other reasons, they noted that this is the one case in the group that was fully tried, developing a factual record during a nine-day trial in a Detroit federal courtroom.
Another case filed at the Court Monday, from Kentucky, completed the round of appeals seeking to challenge the ruling November 6 by the U.S. Court of Appeals for the Sixth Circuit, upholding bans on marriage and on marriage recognition in all four states in that court’s region. That ruling conflicted with decisions by four other federal appeals courts — usually, the situation that will lead to Supreme Court review.
In the Michigan case, the couples’ lawyers told the Supreme Court that state officials had told them that the state would not oppose Supreme Court review of the issue. That was the same stance taken by state governments that were involved in the round of denials of review of same-sex marriage cases by the Court on October 6. At that time, however, there was no division within the federal appeals courts on the basic issue — a split now embodied in the Sixth Circuit’s ruling.
With a total of four petitions filed in the six cases decided by the Sixth Circuit — the Ohio and Kentucky petitions are both joint filings in two cases — the stage is now set for the cases to be submitted to the Justices, as soon as state replies are filed in some or all of the cases. It thus appears that the cases have arrived at the Court in time — if review is, indeed, granted — to be heard and decided in the Court’s current Term.
To be heard and decided before the Justices complete this Term in late June or early July, the cases would have to be ready for the Justices to consider by mid-January. With the current split among federal appeals courts, it would be most surprising for the Court to refuse to hear any of this round of cases. It is up to the Justices to accept or deny each or all of the petitions.
Here is the direct way the Michigan case framed the issue for the Court: “Whether a state violates the Fourteenth Amendment to the U.S. Constitution by denying same-sex couples the right to marry.”
That is quite similar to the question that opponents of same-sex marriage raised before the Court — and the Court agreed to decide — in the case involving California’s ban on same-sex marriage: “Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the· union of a man and a woman.”
That case, however, ended without an answer to the question, because the Court concluded that the sponsors of the California ban did not have a legal right (“standing”) to pursue the appeal (Hollingsworth v. Perry). There is no such problem for those appealing any of the new round of challenges to the Sixth Circuit’s decision.
The new Kentucky case is slightly more complex than the one from Michigan, because it raises the separate issue whether same-sex couples who were married outside of the state have a right to have their unions official recognized. But that case, too, also raises the basic right to marry.
In fact, the Kentucky petition urged the Court to take on the issue now “to settle the question first presented in Hollingsworth v. Perry.”
Both of the new petitions challenge the Sixth Circuit’s decision, point by point, seeking to show that it conflicts directly on each point with rulings by four other federal appeals courts.