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Two same-sex marriage cases speeded up

SSmarriageAdding some impetus for the Supreme Court to take up the same-sex marriage question during its current Term, lawyers for couples in Louisiana and Michigan have told the Court that they are giving up part of their filing rights.  That gesture could lead the Court to schedule those two cases for the Justices’ first look as early as the private Conference set for January 9.

The Court now has five cases on the constitutional controversy over same-sex marriages, but only the Louisiana (Robicheaux v. George) and Michigan (DeBoer v. Snyder) cases are now in a position for early submission to the Justices.  If the Court were to choose to hold all five cases until all are ready, however, that could slow the process considerably.

Under Supreme Court rules, the two sides in an appeal have a right to file papers — a petition for review and then an answering brief.  The rules, however, also allow the side that filed the petition to file a reply brief.  Ordinarily, the Court’s staff does not send a case on to the Justices until after all of those files are submitted.

In both the Louisiana and Michigan cases, state officials have filed their answering briefs, urging the Court to grant the couples’ petitions and move on to decide the constitutional power of states to refuse to both allow same-sex marriages and recognize already-performed same-sex marriages.  In letters sent to the Court recently, the Louisiana couples said they would not use their option to file a reply brief, and the Michigan couples said the same.

The Court has three more dates on which cases will be sent to the Justices for consideration at the January 9 Conference: December 10, 17, and 23.   Of course, consideration at the first January Conference would not necessarily mean that the Justices would grant review then, but having the cases ready very likely would assure that, some time in January, they could vote to grant review.  Any case granted in January has a strong chance of being decided before the current Term ends, probably in late June.

On October 6, the Court refused to hear the first round of same-sex marriages cases filed with it.  But, at that time, there was no split among the federal appeals courts on the basic constitutional questions; there is now, with the U.S. Court of Appeals for the Sixth Circuit splitting off from other circuits by upholding same-sex marriage bans in four states — including Michigan.

The Louisiana petition seeks to test a federal trial judge’s ruling upholding that state’s ban, before the U.S. Court of Appeals for the Fifth Circuit conducts its own review of that prohibition.



Recommended Citation: Lyle Denniston, Two same-sex marriage cases speeded up, SCOTUSblog (Dec. 5, 2014, 4:04 PM),