A federal judge’s order that would have permitted same-sex couples in Mississippi  to get married next week will not go into effect.  The U.S. Court of Appeals for the Fifth Circuit, saying that a detailed examination of the constitutional question is needed, on Thursday ordered a postponement of any such marriages while the state’s appeal goes forward on an expedited schedule.  The judge’s order would have taken effect December 9.

Meanwhile, in an order on Wednesday that clouds the situation in Florida, the U.S. Court of Appeals for the Eleventh Circuit refused that state’s request to extend a postponement beyond January 5, the day when marriages could begin there under a federal judge’s order.  The actual situation over the next few weeks is somewhat unclear, however, because a series of state court rulings against Florida’s ban are on hold in different parts of the state, while higher state courts review the issue.  Florida officials have the option of asking the Supreme Court to delay the federal court case.

The appeals courts handling the Mississippi and Florida cases are among the last at that level to take up the same-sex marriage issue in the eighteen months since the Supreme Court’s decision in United States v. Windsor set off a wave of lower court rulings, most of which have nullified state bans.  The only other appeals courts yet to weigh in are in the First and Eighth Circuits, but cases are also pending in each.

The Supreme Court currently has pending on its docket five cases.  Four of those are appeals by same-sex couples seeking to challenge the decision by the U.S. Court of Appeals for the Sixth Circuit, a decision that upheld bans in four states and thus broke the pattern followed in other appeals courts.  The fifth is an appeal contesting a federal judge’s ruling upholding the Louisiana ban — only one of two by trial-level judges to do so.  The Louisiana petition seeks to test that state’s ban even before the Fifth Circuit rules on it.

The Justices have not yet scheduled any of those cases for initial consideration.  The earliest that they may do so is likely to be the private Conference on January 9.

Currently, the Fifth Circuit is scheduled to hold separate hearings on January 9 — before the same three-judge panel of judges — in the case from Louisiana and another from Texas.  As a result of an order issued Thursday, the Mississippi case is also being expedited, and it will be heard by that same panel — although not necessarily on the same day.  The Fifth Circuit refused a request by same-sex couples to hear all three of the cases at the same time.

State officials had gone to the Fifth Circuit with a plea for a delay because the federal judge in Jackson who ruled against the state’s ban last month only put off his ruling for fourteen days, thus raising the prospect that such marriages could begin December 9.  As other federal appeals court have, while they studied state appeals, the Fifth Circuit granted the requested delay, to last while the appeal proceeds.

Noting that it was moving ahead on a faster-than-usual schedule on the three cases, the Fifth Circuit said that “a temporary maintenance of the status quo balances the possibility of harm [to same-sex couples] with the need to resolve [their] claims in a manner that is both expeditious and circumspect.”





Posted in Featured, Same-Sex Marriage Post-Windsor, Cases in the Pipeline, Same-Sex Marriage

Recommended Citation: Lyle Denniston, Same-sex marriages delayed in Mississippi, SCOTUSblog (Dec. 4, 2014, 5:39 PM), https://www.scotusblog.com/2014/12/same-sex-marriages-delayed-in-mississippi/