After three rulings in support of marriage equality at the federal appeals level, litigation seeking marriage rights for gay couples will only intensify: No fewer than three appellate courts are set to hear oral arguments on the issue before summer’s end.
The most imminent hearing is scheduled for Aug. 6, when the U.S. Sixth Circuit Court of Appeals in Cincinatti will consider six lawsuits against marriage bans in four states: Michigan, Ohio, Kentucky and Tennessee.
It’s the first time that a federal appeals court will consider at the same time challenges to marriage bans in each of the states within the circuit.
James Esseks, director of the LGBT project for the American Civil Liberties Union, is co-counsel to the Ohio cases and said preparations consist of anticipating questions judges may ask in court.
“It’s not too exciting,” Esseks said. “We talk through the issues and try to figure out what we think the judges might ask.”
Shortly afterward, the U.S. Seventh Circuit Court of Appeals in Chicago will hear arguments on Aug. 26 for litigation in two states — Wisconsin and Indiana — and the U.S. Ninth Circuit Court of Appeals in San Francisco will hear arguments on Sept. 8 for another two — Nevada and Idaho.
The U.S. Fifth Circuit Court of Appeals hasn’t yet set a time to hear arguments for the challenge to Texas’ ban on same-sex marriage, but that date should be scheduled soon in the aftermath of a legal brief that Texas Solicitor General Jonathan Mitchell filed in defense of the state law.
The actions from these courts will follow rulings in favor of marriage equality for Utah and Oklahoma from the U.S. Tenth Circuit Court of Appeals and, just this week, for Virginia from the U.S. Fourth Circuit Court of Appeals. They’re among the 70 pending cases related to marriage equality that have led to an unbroken string of 29 wins following the U.S. Supreme Court’s decision against the Defense of Marriage Act.
But the oral arguments before the Sixth Circuit may set the tone for later arguments in other cases because the ruling will affect laws in four states and will likely reflect rulings from other appeals courts striking down bans in Oklahoma, Utah and Virginia.
The three-judge panel that’ll consider the litigation consists of U.S. Circuit Judge Martha Craig Daughtry, a Clinton appointee; U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee; and U.S. Circuit Judge Deborah Cook, another George W. Bush appointee.
Arguments are set to begin at the Potter Stewart U.S. Courthouse at 1 p.m. The court set 30 minutes for each side in the Michigan and Ohio cases, but 15 minutes for each side in the Tennessee and Kentucky cases.
Doug NeJaime, who’s gay and a law professor at University of California, Irvine, said the court may focus on aspects of the raising of children by same-sex couples given the attention to that issue as a reason for lower courts to strike down marriage bans.
“The Sixth Circuit is of course aware of the growing consensus around this issue,” NeJaime said. “Importantly, one of the cases from the Sixth Circuit, DeBoer, had a full trial in which the empirical claims about same-sex couples and child-rearing were deeply engaged and considered. This might focus the court on those questions specifically and put the court on good footing to address them at length.”
Another issue that may come up during the arguments is whether the marriage bans passed in Michigan, Kentucky, Ohio and Tennessee were motivated by anti-gay animus.
In his concurring opinion against Oklahoma’s ban on same-sex marriage, U.S. Circuit Judge Jerome Holmes ruled the law was unconstitutional, but insisted that animus wasn’t a factor in voters’ decision to enact the marriage ban in the first place. He goes out of his way to make this argument seemingly in an attempt to influence subsequent rulings on same-sex marriage.
As The New York Times’ Adam Liptak points out, Holmes’ view, if accepted by other courts, could put up a roadblock for additional rulings in favor of same-sex marriage.
“Judge Holmes’s conclusion that animus did not figure in state bans on same-sex marriage would, if accepted by the Supreme Court, block one path to victory for gay rights groups,” Liptak writes. “There are other paths, of course, as the winning streak in the lower courts makes clear.”
There have been differing views of the definition of animus among justices, although a law enacted for this reason would be hard-pressed to survive scrutiny from the courts.
The differing views on animus are evident by the U.S. Supreme Court’s decision against the Defense of Marriage Act, Liptak notes. In his opinion, U.S. Associate Justice Anthony Kennedy sees animus in a law that has the effect of “impos[ing] a disadvantage, a separate status, and so a stigma.”
On the other hand, Chief Justice John Roberts in his dissent suggested that animus has a more strict requirement of a “sinister motive,” and Associate Justice Antonin Scalia goes further by speaking of “unhinged members of a wild-eyed lynch mob.”
ACLU’s Esseks said animus is a “term of art” that has different meanings among legal practitioners, but the issue shouldn’t preclude a court from overturning a marriage ban.
“It’s both true that animus isn’t required in order to win one of these cases, even in front of Justice Kennedy, and that animus doesn’t mean evil intent, so it’s not as hard to prove as you might think,” Esseks said.
Each of the six cases pending before the Sixth Circuit is related to same-sex marriage, but is different in certain ways. The Michigan case, DeBoer v. Snyder, was filed by private attorneys on behalf of a lesbian couple seeking adoption rights, but later developed into a lawsuit seeking the right to same-sex marriage in the state.
The only other case with an outright marriage equality component is the Kentucky litigation. It’s two consolidated cases: Bourke v. Beshear, which seeks state recognition of out-of-state same-sex marriages, and Love v. Beshear, which seeks the right to marry for the same-sex couples in Kentucky.
The Tennessee case, Tanco v. Haslam, was filed by the National Center for Lesbian Rights and is an appeal of a preliminary injunction requiring the state to recognize the out-of-state marriages of the three plaintiff same-sex couples in the lawsuit.
There are two Ohio cases: Obergefell v. Himes and Henry v. Himes. Both were filed by the same private attorneys and were decided by the same district judge, but the former case seeks recognition of out-of-state same-sex marriages for the purposes of death certificates, and the latter seeks recognition of these unions for the purpose of birth certificates for children born to same-sex couples.
Another Ohio ruling could take place before next week in Gibson v. Himes, another case that seeks outright marriage equality in the state, but it’s unlikely that litigation will be briefed before the appeals court in time for the arguments with other cases.
Esseks said the way in which the Sixth Circuit will decide the litigation — whether by one ruling or multiple rulings — is yet to be seen, but in any event a ruling for marriage equality in just one state would establish precedent for others within the circuit.
Regardless of the way the Sixth Circuit decides the case, the ruling that will follow — along with others from other appellate courts — will likely join others at the Supreme Court as the justices begin their term in the fall. Utah Attorney General Sean Reyes has already vowed to appeal the Tenth Circuit’s decision against his state’s marriage ban to the high court.
Although the Supreme Court is under no obligation to take up any of the cases, observers expect the justices will take up at least one of the marriage lawsuits — if not a combination — and deliver a ruling by summer 2015.
Esseks said additional rulings in favor of marriage equality from the Sixth Circuit and other courts will only add to the strength of the cases when they reach the Supreme Court.
“Building the consensus helps us, I think, very significantly with the U.S. Supreme Court to be able to point to the current reality, that there’s an unbroken line of state and federal court decisions since Windsor on what the Constitution means in terms of the freedom to marry,” Esseks said. “That is enormously helpful, enormously powerful to be put in front of the Supreme Court.”