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Did Obergefell settle the same-sex marriage issue?

The state of Nebraska, arguing that the Supreme Court’s June ruling opening the right to marry to same-sex couples settled the issue nationwide, urged a federal appeals court on Tuesday to reopen that state’s case and keep seven Nebraska couples from pursuing their case further and seeking to recover the money they spent for their lawyers’ fees.

Nebraska is one of several states that previously banned same-sex marriage that have been trying to persuade lower federal courts that the Justices’ ruling in Obergefell v. Hodges made all similar cases moot — that is, no longer live disputes.  Couples who sued in many states are now pursuing further orders, including an award of lawyers’ fees.  In response, Nebraska’s lawyers have now gone further than other states have, seeking en banc review of the dispute by the U.S. Court of Appeals for the Eighth Circuit.

A three-judge panel of the Eighth Circuit on August 11 rejected Nebraska’s argument that the Nebraska case, Waters v. Ricketts, was now moot and should be dismissed without a final order in the couples’ favor.  The panel said that the Supreme Court had only struck down four states’ bans specifically — not including Nebraska’s — and did not rule on any couples’ right to state benefits that go with marriage.  Like other couples, the seven couples in that state had sued not only to get the chance to marry, but to gain its benefits.

While noting that state officials had assured the Eighth Circuit that they stopped enforcing that state’s ban as soon as the Supreme Court had ruled, the panel said the state had not yet “repealed or amended” its ban.  “Nebraska’s assurances of compliance…do not moot the case,” it declared, but it added that that position could affect how a federal trial judge now shapes a final order in the couples’ case.

The panel then went on to uphold specifically the preliminary order that the trial judge had issued in the couples’ favor before Obergefell was decided by the Justices, and it returned the case to that judge to issue a final ruling for the couples.

In its plea for rehearing en banc, the state contended that its officials had engaged in “total and immediate compliance” with Obergefell, and that the seven couples had offered no evidence that the state “would deny them any benefit or privilege of marriage.”  The filing added: “It is difficult to conceive of what other evidence Nebraska could have marshaled.”  The couples, it said, had engaged in”pure speculation” that some future government in the state might engage in some violation of their rights.

Under the panel’s ruling, the state said, the couples who sued “will achieve ‘prevailing party’ status and Nebraska will be punished financially for having defended its law” under prior Eighth Circuit precedent, and then fully complied when the Supreme Court ruled the other way.  (The Eighth Circuit in 2006 had upheld Nebraska’s ban.)

Under federal civil rights laws, trial judges have wide discretion to award the winners of such cases the right to recover their attorneys’ fees from the losing party.   If the case is declared moot, however, there would be no final judgment declaring those who sued to be the winner, and thus the “prevailing party.”

The state asked the full Eighth Circuit to take on the case, to review both the denial of the state’s plea to declare the case moot and its ruling upholding the preliminary order the trial court had issued.

The issue at stake, the state contended, is “of exceptional importance,” testing whether a suing party is entitled to a final ruling in its favor after the claimed injuries “have disappeared and there is no reasonable expectation that the [state’s] allegedly wrongful behavior will recur.”  Such a case, it argued, should instead be declared moot because there was no longer a “case or controversy.”




Recommended Citation: Lyle Denniston, Did Obergefell settle the same-sex marriage issue?, SCOTUSblog (Aug. 26, 2015, 10:41 AM),