June 4, 2014 | by Chris Johnson
Pride season could bring more marriage victories

A look of the state of marriage equality litigation in various states (Blade image by Jim Neal).

A look of the state of marriage equality litigation in various states (Blade image by Jim Neal).

Marriage equality is advancing through the judicial system at breakneck speed, and the rulings are expected to keep coming in the near future as Pride season begins — and some cases will make history as the first rulings at the appellate level since the U.S. Supreme Court decision striking down part of the Defense of Marriage Act.

Since that historic decision almost a year ago, a total of 14 federal courts have ruled in favor of marriage equality as a result of litigation in various states in addition to four state courts in New Mexico, New Jersey, Arkansas and Texas, which makes a total of 18 rulings.

The most recent decisions came late last month. Over the course of two days, U.S. District Judge Michael McShane, who’s gay, struck down Oregon’s ban on same-sex marriage, and U.S. District Judge John Jones III struck down the ban in Pennsylvania.

All in all, more than 70 cases are estimated to have been filed throughout the country seeking to strike down state bans on same-sex marriage. The only state without a pending marriage equality lawsuit is North Dakota, although litigation is expected soon there.

It’s only a matter of time before one of these cases reaches the U.S. Supreme Court, which could issue a nationwide ruling on marriage equality. At the rate that cases are advancing through the federal judiciary, observers predict the high court will take up a case at the start of its next term in the fall, and make a decision in June 2015.

In the days and weeks ahead, numerous district and appellate courts are poised to make rulings on same-sex marriage, either because they’ve completed oral arguments or they’ve been asked to issue judgment in the cases.

Appeals courts may soon deliver rulings

The most prominent among those cases are those before four federal appeals courts because they’ll be the first federal appeals court rulings on marriage after the Supreme Court decision against the Defense of Marriage Act.

At any time, the U.S. Tenth Circuit Court of Appeals could hand down rulings in the case challenging Utah’s ban on same-sex marriage, Kitchen v. Herbert, and the case challenging Oklahoma’s ban, Bishop v. Smith. The court heard arguments for the Utah case on April 10 and the Oklahoma case on April 17.

Much like the marriage cases that were before the Supreme Court last year, the appeals court could decide to issue a ruling on the technical basis of standing.

In Utah, the standing issue is the result of the Salt Lake City clerk being named as a defendant in the lawsuit, but not appealing the lower court ruling against the marriage ban. As a result, Gov. Gary Herbert and Attorney General Sean Reyes had to show that they have standing to appeal the decision.

In Oklahoma, the standing issue stems from whether the already-married plaintiff couple in the case has standing to challenge the non-recognition of their marriage given because they only sued Tulsa County Clerk Sally Howell Smith, whom the district court held has nothing to do with recognizing marriages, instead of a state official who denied recognition.

Shannon Minter, legal director of the National Center for Lesbian Rights, said while standing is a “real issue” in the Oklahoma case, he doesn’t think it’s significant in the Utah litigation.

“In contrast to Oklahoma, where there is a real question whether the married couple has standing to sue a county clerk, there really is not much question that the AG and the governor were proper defendants,” Minter said. “Unlike Oklahoma, where county clerks are judicial officers, in Utah the county clerks are under the direct supervision and control of the executive branch (e.g., AG and governor).”

It would seem that a ruling on standing grounds would be beneficial for marriage equality in the Utah case, but adverse for same-sex couples in the Oklahoma case. But it’s hard to say what the results of a standing ruling would mean, especially if the companion lawsuit in the other state is decided on the merits.

Utah Gov. Gary Herbert, who’s defending the marriage law in court along with Utah Attorney General Sean Reyes, appears eager to be the face of anti-gay marriage forces if the case reaches the Supreme Court. During a news conference last month, he criticized attorneys general in other states who’ve elected not to defend state bans on same-sex marriage.

“For elected officials, governors or attorneys general, to pick and choose what laws (they) will enforce I think is a tragedy, and is the next step to anarchy,” Herbert said. “We have an obligation as a state to defend those laws.”

In the same news conference, Herbert suggested that he believes being gay is a choice, saying “what you choose to do with your sexual orientation” is different from other characteristics such as race.

“What your attraction may be is something else, but how you act upon those impulses is a choice,” Herbert said.

Also expected to rule soon is the U.S. Fourth Circuit Court of Appeals, which at any time could decide on Virginia’s ban on same-sex marriage, Bostic v. Schaefer. In that case, oral arguments took place before the appeals court on May 13.

Rulings in other cases before the appeals courts aren’t quite so imminent. One case before the U.S. Ninth Circuit Court of Appeals that has recently seen movement is the case challenging Idaho’s ban on same-sex marriage: Latta v. Otter.

The Ninth Circuit issued a stay prohibiting same-sex weddings from taking place in Idaho following the district court ruling against the state marriage law, but pledged to consider the case on an expedited basis and scheduled oral arguments for the week of Sept. 8.

The court was already hearing a challenge to Nevada’s ban on same-sex marriage, Sevick v. Sandoval. The court has granted a request to hear the case on expedited basis and will hear arguments in September.

Notably, the Ninth Circuit is also continuing to hear a case seeking marriage equality in Hawaii, Jackson v. Fuddy, even though the state already legalized gay nuptials through the legislative process. The Hawaii Family Forum, an anti-gay group allowed to intervene in the case, has asked the court to issue a ruling on the constitutionality of banning same-sex marriage in the event Hawaii decides to repeal marriage equality. Briefings in that case are set to conclude on June 25.

Another appeals court that isn’t as far along is the U.S. Fifth Circuit Court of Appeals. The appeals court is considering DeLeon v. Perry a challenge to the Texas ban on same-sex marriage. Oral arguments in the case aren’t yet scheduled, but last week the court set the briefing schedule for the case.

The situation with another appeals court, the U.S. Sixth Circuit Court of Appeals, is unique because it’s the only federal appeals court ever to consider at the same time a marriage case from each state within the circuit. Officials in Michigan, Ohio, Tennessee and Kentucky have each appealed rulings against same-sex marriage bans in their states to the Sixth Circuit.

The only case among those four seeking marriage equality is the Michigan case, DeBoer v. Snyder. The Tennessee case, Tanco v. Haslam, is seeking recognition of same-sex marriage within the state. The Kentucky case, Bourke v. Beshear, is also seeking recognition of same-sex marriage within the state, but the case was amended at the district court level by same-sex couples seeking the ability to wed within the state.

The Ohio litigation is the consolidated case of Obergefell v. Himes and Henry v. Himes. The former was a case seeking state recognition of same-sex marriage for the purposes of birth certificates; the latter was a case seeking recognition for the purposes of death certificates. The cases were consolidated on May 20.

The Sixth Circuit hasn’t scheduled oral arguments in any of these cases yet, but briefings are expected to conclude by the end of this month.

Wisconsin among potential district court rulings

The vast majority of the marriage equality lawsuits are still pending at the district court level and have the potential for imminent rulings striking down same-sex marriage bans in other states.

In at least three states, rulings on the merits of state bans on same-sex marriage could come at any time because the briefing is complete and the judges haven’t given any indication they want to hear oral arguments before making a ruling. Those lawsuits are before federal courts in Wisconsin, Indiana and West Virginia.

With a ruling imminent in the Wisconsin case of Wolf v. Walker, Gov. Scott Walker, a Republican facing re-election this year, uncharacteristically seemed to back away from support of the marriage ban when asked whether he thinks it violates the U.S. Constitution.

“Any federal judge has got to look at that law not only with respect to the state’s constitution but what it means in terms of the U.S. Constitution, as well.” Walker said. “Again, I’m not going to pretend to tell a federal judge in that regard what he or she should do about it.”

His administration is apparently bracing for a ruling from the judge against the current law. Last week, Attorney General J.B. Van Hollen took the unusual step of asking for a stay ahead of the ruling in the event the judge overseeing the case decides to strike down the ban.

A ruling in Indiana could come down imminently from any of three cases where briefings have been complete: Fujii v. Governor, Love v. Pence or Baskin v. Bogan. In West Virginia, the fully briefed case seeking marriage equality is McGee v. Cole.

In Nebraska, arguments were also recently completed before the state Supreme Court in the case of Nichols v. Nichols, clearing the way for a ruling at any time. However, plaintiffs in the case are seeking the right to divorce as opposed to the right to marry. While initially considered a marriage case, justices reportedly indicated during the arguments they might focus their ruling on divorce rights without altering the state ban on same-sex marriage.

In other states, motions for preliminary or permanent injunction motions have been fully briefed, so decisions here could also come imminently that allow same-sex couples to wed without definitively deciding the merits of the constitutionality of the bans. These states are Florida, Indiana, Kentucky and Texas.

Close on the heels of rulings in these cases may be a decision in a Colorado case filed in state court: Brinkman v. Long. A hearing has been set for June 12. It’s different from other cases because it’s a state lawsuit, not a federal lawsuit, so a ruling here would be along the lines of the litigation that brought marriage equality to Arkansas before the State Supreme Court stayed the ruling.

Briefings are also fully complete for lawsuits seeking marriage equality in Louisiana, Robicheaux v. George and Forum for Equality Louisiana v. Barfield, but a ruling won’t happen soon because oral arguments are scheduled for June 25.

In another state, North Carolina, a briefing is completed in the consolidated case of Fisher-Borne v. Smith and Gerber v. Cooper. On Monday, the magistrate in the case has indicated the case would be stayed until a decision in the Virginia case. Both Virginia and North Carolina are in the same circuit, so a ruling against the Virginia ban would make the North Carolina ban vulnerable.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

4 Comments
  • Best map anywhere.

    Clear, easy to understand, nice colors!

  • The map should include American Samoa, the Commonwealth of the Northern Mariana Islands, the Commonwealth of Puerto Rico, Guam, and the United States Virgin Islands.

    A victory for marriage equality is likely in Puerto Rico (see "Report 43 – The Commonwealth of Puerto Rico: a jurisdiction to watch in 2014" in "Equal Human Rights and Civil Rights for All Persons, No Matter Their Gender, No Matter Their Sexual Orientation: A Newsletter" [www.humciv.com]).

    The map would not have room for the 565 First People jurisdictions in the United States, in at least eight of which same-gender marriage is lawful (see "Report 9 – So far, civil marriage for all consenting adult couples, no matter their gender, no matter their sexual orientation, is legal in…" in the newsletter).

  • Dwight Schrute

    Messed up on Virginia. You have red for the mainland part of Virginia but have the Eastern Shore of Virginia colored pink

  • Nice catch! Oh that pesky appendage :-)

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