In a two-page order, the U.S. Eighth Circuit Court of Appeals refuses a request from Missouri Attorney General Chris Koster to place a hold on the litigation, but at the same time denies a request from plaintiff couples in the case to lift the stay on U.S. District Judge Ortrie Smith’s decision in November against the state ban.
Additionally, the court grants plaintiff same-sex couples’ request for an expedited hearing in the case and sets the briefing schedule. A legal brief from the state is due Feb. 17, a response from the plaintiff is due 30 days after, and further responses are scheduled later. But no date is yet set for oral arguments.
The Missouri case, Lawson v. Kelly, is but one lawsuit seeking marriage rights for same-sex couples pending before the Eighth Circuit.
Also before the court is an appeal of a ruling in favor of same-sex marriage in Arkansas, which was already placed on a briefing schedule identical to that of the Missouri case. Additionally, the Arkansas Supreme Court could also rule at any time on marriage as a result of state litigation.
In South Dakota, the attorney general is expected to appeal a decision in favor of same-sex marriage before the Eighth Circuit, but that hasn’t yet taken place.
Meanwhile, a district judge in North Dakota, which is also under the jurisdiction of the Eighth Circuit, took another approach and placed a hold on pending marriage litigation until the Supreme Court renders a decision on the issue.
Adam Romero, federal legal director of the Williams Institute at the University of California, Los Angeles, said the Eighth Circuit order “is both surprising and unsurprising.”
“It is surprising because courts often stay cases when a higher court is likely to rule on the exact same legal issue in the near future – which is more or less the situation here,” Romero said. “But it is also unsurprising that the Eighth Circuit refused to stay the Missouri case given that the Supreme Court has recently repeatedly refused to stay numerous judgments in favor of same-sex couples, including those from Florida, Idaho, Virginia, Utah, Oklahoma, Indiana, and Wisconsin.”
Romero said he doesn’t think the Eighth Circuit order guarantees the federal appeals court will issue a decision before the Supreme Court rules as expected in June.
“The Eighth Circuit, in the end, may get the appeal all briefed up and ready to go but then wait for the Supreme Court to rule; if that is the scenario that unfolds, I think we can expect the Eighth Circuit to act very quickly after the Supreme Court’s decision is issued,” Romero said.