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Momentum builds for review of same-sex marriage

A second state — Louisiana — told the Supreme Court on Tuesday that the Justices should consider taking on the constitutional dispute over same-sex marriage without waiting further.  It is important, the state said in urging prompt review of a federal judge’s decision upholding Louisiana’s ban on such marriages, that the Court examine the dispute in a broad context to reach all of the issues.

With the filing of Louisiana’s views, paralleling the suggestion for early review made by Michigan in another case, the Supreme Court now has two new cases nearly ready for early consideration, perhaps in time for a final decision before the end of the current Term.  Other cases on the issue are pending, but if the Court waits for all of the filings to be submitted in all of the cases, that could slow the process.

If the Court does move now to review any of the new appeals, Louisiana — like Michigan — wants its own ban on same-sex marriages upheld, its new filing made clear.  But, at this stage, the two states have stressed the importance of advancing the controversy toward a final resolution by the only court with authority to do that, in a case or cases which lay out the issues that will shape the outcome.

Louisiana said it supports a grant of review of the Michigan case, DeBoer v. Snyder, but wants the Justices in doing so to also put on their decision docket the case of Robicheaux v. George, in which a federal judge in New Orleans ruled in favor of the state and against the challenging same-sex couples.

Although Michigan’s ban, like Louisiana’s, not only forbids same-sex couples from getting married in the first instance but also refuses to recognize same-sex marriages performed in other states, the only couple challenging the Michigan ban is testing the so-called celebration issue while the seven couples who have filed the Louisiana case together are testing both that issue and the so-called recognition question.

The U.S. Court of Appeals for the Sixth Circuit, in the decision upholding the Michigan ban, also upheld recognition bans in other states in its region.  Even so, the Court may have some hesitation to reach both questions if the petition from Michigan is the only one it accepts for review.  That is why the twin-issue case from Louisiana was promoted by state lawyers as a broader test case.

But, to grant the Louisiana case at an early point, the Supreme Court would have to agree to let that case skip the level of a federal appeals court.  After the federal trial judge upheld both Louisiana bans, the same-sex couples involved appealed the case to the U.S. Court of Appeals for the Fifth Circuit, where it is now scheduled for a hearing on January 9.   The couples involved in the case have since asked the Supreme Court to grant the case without waiting for the Fifth Circuit’s review.  That is the move that state officials supported on Tuesday.

As of now, the Court has five petitions from which to choose, if it is ready to choose.  In addition to the Louisiana and Michigan petitions, there are filings testing the bans in Kentucky, Ohio, and Tennessee.  In addition, state officials in South Carolina said this week that they will be filing their own petition, asking the Justices to leap-frog an appeal the state now has pending at the U.S. Court of Appeals for the Fourth Circuit.  The South Carolina filing has not yet been made.

In the new Louisiana filing, the state’s lawyers said that “the sheer number of issues” supports the suggestion that the Court grant review of “multiple petitions.”

The main issues that the new brief said are presented by the pending petitions are these: whether a state is required by either the Constitution’s Equal Protection or Due Process Clauses to allow same-sex couples to marry, whether those two clauses or the Full Faith and Credit Clause compel the state to recognize out-of-state same-sex marriages, and whether a ban on recognition violates the constitutional right to travel that the Supreme Court has recognized in some contexts.

In addition, the brief said, there are several “sub-issues” at stake: does the “right to marry” include marrying someone of the same sex, and what level of analysis is to be used to judge the validity of a ban based on claims of discrimination based on sexual orientation, gender, or hostility (“animus”) to gays and lesbians.

“This swath of issues,” state lawyers said, “may require separate briefing and argument.  In that event, it would make sense to have a range of experienced counsel with a variety of approaches, which granting multiple petitions would accomplish.”

In promoting the Louisiana case as an appropriate one for review along with the Michigan petition, Louisiana’s filing cited these facets, among others: the judge resolved both the celebration and recognition issues, there is no problem of anyone’s legal status (“standing”) to pursue a challenge, the rulings were final and were based solely on law, rather than facts that were disputed, and there is now not only a conflict among federal courts over the outcome of test cases, but there is also a dispute within Louisiana itself: a state court has struck down the ban, while the federal judge has upheld it.

The filing did suggest that the Court may choose to wait, until further decisions emerge in state or federal courts.  The entire tone of the document, however, was set on the opening page, referring to “a spiraling national controversy that has already nullified the marriages laws of over twenty states and spawned a four-to-one circuit split.”



Recommended Citation: Lyle Denniston, Momentum builds for review of same-sex marriage, SCOTUSblog (Dec. 2, 2014, 1:33 PM),