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New same-sex marriage case on way to the Court (UPDATED)

UPDATED 6:42 p.m.   Taking the same position as state officials have in other same-sex marriage cases, government officials in Ohio on Friday urged the Supreme Court to rule on the constitutionality of state laws against same-sex marriage.  “The country deserves a nationwide answer — one way or the other,” the state’s brief said.  The state defended its ban even while asking the Court to review it.  The Ohio case and the new filing are discussed more fully at the end of the following post.


The leaders of the two branches of the North Carolina state legislature notified a federal court on Friday that they will ask the Supreme Court to rule promptly on the constitutionality of the state’s ban on same-sex marriage.  In a filing at the U.S. Court of Appeals for the Fourth Circuit, the two legislative leaders — both Republicans — asked the Fourth Circuit to put on hold an appeal they have pending there, because an appeal to the Supreme Court will be made, urging the Justices to bypass the Fourth Circuit.

This is the second case from the geographic region of the Fourth Circuit that is bound for the Supreme Court on a plea to rule before the Fourth Circuit resolves pending appeals.  The other planned petition is by state officials in South Carolina; it has not yet been filed.   The Fourth Circuit has previously struck down a ban in Virginia, and federal judges in North and South Carolina have applied that ruling in nullifying state prohibitions.

Thom Tillis, the speaker of the North Carolina House (who in January will become a U.S. senator for the state) and Phil Berger, the presiding officer of the state senate, argued in their filing today that the Supreme Court is likely to grant review of some of the pending appeals on the same-sex marriage dispute.   The Fourth Circuit should postpone the North Carolina cases until after the Supreme Court acts on the state legislative leaders’ petition, they asserted.

The two legislative leaders have moved into the same-sex marriage cases after the state’s attorney general chose not to appeal rulings against the state laws, which ban not only new same-sex marriages, but also bar recognition of existing same-sex marriages performed in other states.  Same-sex marriages are now being performed across the state.

If the Fourth Circuit does not delay the North Carolina proceeding, the state legislators’ motion argued, lawyers will have to be working simultaneously on those cases and on appeals to the Supreme Court.

The Supreme Court already has five new same-sex marriage cases on its docket: four of them challenge a ruling by the U.S. Court of Appeals for the Sixth Circuit, upholding bans in four states in that region, and one challenging a ruling by a federal judge in Louisiana upheld that state’s ban.

The Justices have not yet acted on any of the new round of cases, but it appears that the cases may be prepared in time for them to do so in January.   Among the cases that the Supreme Court refused to review on October 6, at the opening of this Term, was the Fourth Circuit’s decision striking down the ban in Virginia.

Updated information on Ohio’s response to the petition in Henry v. Hodges (which appears on the blog’s case page as Obergefell v. Hodges):

The Ohio petition grows out of two cases in that state.  Both focus on what is usually called the “recognition” issue: same-sex couples who already are married, and want the state to officially recognize their marriages.

One of the cases involves three couples who were married elsewhere and want the state to recognize both married parents on their children’s Ohio birth certificates, and a same-sex couple who were married in New York and are seeking the same thing for a child born in Ohio and adopted in New York.  The other case involves two men who were married in other states to their same-sex spouses, who later died; they are seeking to have their marriages acknowledged on the death certificates of their late spouses.

In taking the case to the Supreme Court, the couples raised the right-to-recognition question under the Fourteenth Amendment, as well as — for the New York couple — a claim that Ohio must recognize the New York adoption of an Ohio-born child under the Constitution’s Full Faith and Credit Clause.

In agreeing that the Supreme Court should agree to review the Ohio case, the state urged the Justices to rule only on the Fourteenth Amendment question.   Because the Full Faith and Credit Clause issue, the state argued, raised a series of complicating issues, that question should not be addressed.

With the Ohio response, there are now four new same-sex marriage cases that are nearly ready for the Justices’ first look.  Only a Tennessee case, among the new cases recently filed, awaits a response from the state; that is due on Monday.

As the above post shows, two more cases are on their way to the Court — from North and South Carolina.

If the Court’s staff sends some or all of the existing five cases to the Justices during the rest of this month, they all could be considered as soon as the Court’s January 9 Conference.  Agreement by the Court to hear one or more of the cases at that time, or soon afterward, would be in time for a final ruling during the Court’s current Term, which will run to late June or early July.





Recommended Citation: Lyle Denniston, New same-sex marriage case on way to the Court (UPDATED), SCOTUSblog (Dec. 12, 2014, 5:51 PM),