The culmination of a week in which gay nuptials have now become legal in 36 states and D.C. will end with consideration of same-sex marriage cases before the U.S. Supreme Court and the U.S. Fifth Circuit Court of Appeals — and major news could come down on the same day if the high court takes up a case.
The two events on Friday, which are happening coincidentally on the same day, conclude a historic week in which the first same-sex couples began marrying in Florida as a result of court decisions in the state against its prohibition on gay nuptials. That brings to more than 216 million Americans — or 70 percent of the country— now living in a jurisdiction with marriage equality.
In New Orleans, a three-judge panel on the Fifth Circuit is set to hear oral arguments in federal litigation seeking marriage equality in Texas, Mississippi and Louisiana. In Washington, the Supreme Court is set to consider whether to take up lawsuits seeking marriage rights for same-sex couples in Michigan, Ohio, Kentucky and Tennessee, where the U.S. Sixth Circuit Court of Appeals upheld bans on gay nuptials, as well as the case in Louisiana.
James Esseks, director of the LGBT project for the American Civil Liberties Union, said the prospects of the Supreme Court taking up the marriage issue are “huge” and could set the stage for a nationwide decision on marriage equality this year.
“At this point, it’s not a big jump in terms of changing the reality on the ground in a comparatively small percentage of the U.S. population,” Esseks said. “I think we are in endgame in the struggle for the freedom to marry, and it’s very likely the court will grant review in one or more of these cases this week or next week, and that they will be scheduling arguments and decisions this term. That is certainly my hope, and it’s my prediction as well.”
Before the Fifth Circuit, which has a reputation for being the most conservative in the country, the three-judge panel that will hear the marriage cases before the appellate court consists of U.S. Circuit Judge Patrick Higginbotham, a Reagan appointee; U.S. Circuit Judge Jerry Smith, another Reagan appointee; and U.S. Circuit Judge James Graves Jr., an Obama appointee.
In two of the cases coming before judges — the Texas case of DeLeon v. Perry and the Mississippi case of Campaign for Southern Equality v. Bryant — states are appealing federal district court rulings overturning bans on same-sex marriage. But in the consolidated Louisiana case of Robicheaux v. Caldwell, U.S. District Judge Martin Feldman upheld the state’s prohibition on gay nuptials.
Arguing on behalf of the Campaign for Southern Equality and two same-sex couples in the Mississippi case will be Roberta Kaplan, an attorney at Paul, Weiss, Rifkind, Wharton & Garrison LLP who successfully argued in 2013 before the Supreme Court against the Defense of Marriage Act.
“As with all arguments, we’re taking these arguments this upcoming Friday very seriously,” Kaplan said. “The team is hard at work reviewing the various briefs that were filed, the applicable case law, and preparing to grill the heck out of me in practice for the court.”
Although the Fifth Circuit arguments are open to the public and the media, the proceedings in the Supreme Court conference are confidential and results aren’t known until subsequent orders are published.
The Supreme Court has docketed five marriage cases for its Friday conference. Two lawsuits — DeBoer v. Snyder in Michigan and Bourke v. Beshear in Kentucky — seek the outright ability for same-sex couples to marry, but another two — Obergefell v. Hodges in Ohio and Tanco v. Haslam in Tennessee — seek state recognition of same-sex marriages performed elsewhere.
In those cases, the U.S. Sixth Circuit Court of Appeals upheld prohibitions on same-sex marriage, creating a split after federal appeals courts in the Tenth, Seventh, Fourth and Ninth circuits struck down similar laws in those jurisdictions.
Also before the Supreme Court is a petition for a writ of certiorari before judgment in the Louisiana case, which was filed by the LGBT group Lambda Legal even though the Fifth Circuit has yet to rule on the lawsuit.
Douglas NeJaime, a law professor at University of California, Irvine, said the Supreme Court is less likely to take up the Louisiana lawsuit because it isn’t as fully matured as others.
“They care about cases running their course and this is the decision of one district court judge, and there is a Fifth Circuit panel actually reviewing that decision,” NeJaime said. “If you’re viewing that, for instance, against a Sixth Circuit decision, the Sixth Circuit decision seems more likely.”
Other petitions filed by Idaho Gov. C.L. “Butch” Otter and Idaho Attorney General Lawrence Wasden last week seeking review of the Ninth Circuit decision overturning the marriage ban in Idaho are too new for consideration at the conference. The onus is on National Center for Lesbian Rights, which initiated the lawsuit, to file a response before the end of the month.
For the pending cases during the conference, the Supreme Court has three options: grant a writ of certiorari to take one or more of the cases (which takes a vote of at least four justices), deny certiorari or hold the cases over until the next conference.
Although orders are often not published until several days after a conference takes place (as was the case in October when the Supreme Court denied certiorari in five marriages cases), Esseks predicted orders from the court “may well” come down in this instance on the same day if certiorari is granted.
“At this point in the year, it’s become fairly routine that they do issue at least some grants on the afternoon of the conference,” Esseks said. “There’s a chance we’ll get orders sometime in the afternoon on the 9th. If we don’t get them then, it may be that the cases have been put over, relisted for the 16th.”
If the court takes the opportunity to grant certiorari at the conference, the next steps are briefing, arguments and rendering a decision. From the day that certiorari is granted, attorneys for plaintiff same-sex couples will have 45 days to file an opening brief, then the state would have another 30 days to respond and plaintiffs will have time to respond to that brief. The expectation is that oral arguments would take place in April, clearing the way for a final decision in June.
But the most likely option is the court will choose at the conference to simply hold over the cases for a subsequent meeting. The court’s practice this term has been generally to take at least two conferences to consider whether to grant a case, which may be the case for the marriage lawsuits. The next conferences are set for Jan. 16 and Jan. 23.
However, only a short delay in deciding whether to take up a marriage case could put off a nationwide decision on the marriage issue beyond this year. Esseks said the court should be able to complete the process this year if certiorari is granted on Friday, or during the Jan. 16 session, but the situation becomes iffy if a decision isn’t made until Jan. 23.
“If it’s the 23rd of later, it starts to look likely to me that would be something that would be briefed and argued next term, not this term,” Esseks said.
Although the Supreme Court denied certiorari for marriage cases in five states — Utah, Oklahoma, Virginia, Indiana and Wisconsin — the sense is the court won’t take that same action this time. For starters, all the circuits were in agreement at the time that bans on same-sex marriage were unconstitutional, by upholding prohibitions in its jurisdiction, the Sixth Circuit has created a split the Supreme Court will likely want to correct.
NeJaime said while there may not have been votes on the court to seek to overturn federal appeals court decision in favor of marriage equality in October, the situation is reversed now that cases are before justices in which an appeals court ruled against same-sex couples.
“I think that we have a pretty good sense that justices like [Ruth Bader] Ginsburg were voting to deny cert in the other cases,” NeJaime said. “I think she would vote to grant cert in this. I think those in favor of same-sex marriage are not going to let stand the Sixth Circuit ruling, whereas they were happy to let the other lower court rulings stand.”
Once the Fifth Circuit arguments are over, those judges may be influenced by the Supreme Court conference happening on the same day, but it’s hard to say in which way.
Esseks said the appeals court may do nothing after arguments because they feel the Supreme Court will act on the issue on its own accord, or the panel may hasten to issue a ruling to make its voice heard.
“We’ll find out on Friday what that court is likely to do, and it could mean the split gets bigger if it goes against us or it could be the split in front of us gets smaller if the court rules for the plaintiffs,” Esseks said. “If it gets bigger, it’s just even more of a reason for the court to take it. But they don’t need more of a reason, they’ve already got an extraordinarily clear split and it seems to me they don’t need any more reason to take a case if they should, and I think they will, take the issue up.”