By Lisa Keen
The U.S. Supreme Court put off until at least this Friday (Jan. 16) a decision on whether it will hear appeals challenging a 6th Circuit U.S. Court of Appeals ruling that said states can ban same-sex couples from marrying.
It did so while announcing that it would not hear a similar appeal against Louisiana's ban on same-sex marriage – a ban that was argued before the 5th Circuit on Monday.
Meanwhile, on Friday, Jan. 9, the full 9th Circuit U.S. Court of Appeals refused – with one blistering dissent — to review challenges to a three-judge panel's decision that such bans in Idaho and Nevada are unconstitutional. And a federal district court judge in South Dakota on Tuesday of this week declared that state's ban unconstitutional.
While the other developments are important, all eyes this week were on the U.S. Supreme Court and whether it would – as most legal observers expect – grant appeals seeking to overturn bans in the four 6th Circuit states: Kentucky, Michigan, Ohio and Tennessee.
The court made no mention of the cases on its orders list, issued Monday, but later said the cases were scheduled for the justices' next private working conference this Friday.
Because the 6th Circuit is the only circuit, thus far, to have declared state bans on same-sex couples marrying to be constitutional, many believe the Supreme Court will feel compelled to take up the cases and settle the conflict among circuits. The 4th, 5th, 9th and 10th Circuits have declared such laws unconstitutional, saying they deny same-sex couples their constitutional rights to due process and equal protection.
Early indications suggest a majority of the justices will also find such bans unconstitutional but, without a Supreme Court ruling, bans will be allowed to continue in some states but not in others. In addition to the four 6th Circuit states, bans are still operating in 13 states.
In one of those states, South Dakota, a federal district judge, Karen Schreier (a Clinton appointee) ruled Monday that the state ban is unconstitutional. An impromptu poll by the Argus Leader newspaper found 81 percent of 5,285 website readers disagreed. And state Attorney General Marty Jackley said he would appeal to the 8th Circuit, which has yet to rule on the issue.
The 9th Circuit has ruled on the issue, multiple times, and announced Jan. 9 that it would not have the full appeals court hear yet another appeal from Idaho and Nevada. Attorneys representing Idaho argued that a full appeals court hearing was warranted because of the "significant long-term harms" allowing same-sex couples to marry will have on "Idaho and its citizens, especially the children of heterosexuals." The brief claimed that male-female couples with children are "less likely" to engage in child abuse, neglect and divorce, and that allowing same-sex couples to marry "undermines the 'marital masculinity' norm because it suggests that society no longer needs men to form well-functioning families or to raise happy, well-adjusted children."
A group supporting bans on same-sex marriage appealed Nevada's case, saying the three-judge panel who ruled the law unconstitutional last year was biased in favor of same-sex marriage.
Only three judges of the 9th Circuit (appointees of Reagan, Clinton and George W. Bush) issued a dissent to the full 9th Circuit's refusal to hear the appeals. They said the full appeals court should have heard the appeals because the issue is "exceptionally important" and the U.S. Supreme Court has not yet decided the issue. The three claimed that, while the Supreme Court struck down bans on interracial marriage in Loving v Virginia, those bans were racially motivated and "no such discrimination is implicated here." And they argued that the Supreme Court's ruling in 2013 – that the Defense of Marriage Act was unconstitutional – put "emphasis on the unprecedented federal intrusion into the states' authority over domestic relations," an emphasis that would argue for upholding state bans on same-sex marriage.
In New Orleans on Monday, a 5th Circuit panel heard arguments in three cases from three states: Louisiana (Robicheaux v Caldwell), Texas (DeLeon v Perry) and Mississippi (Campaign for Southern Equality v Bryant). The Louisiana case was also on a list of same-sex marriage cases to be discussed by the U.S. Supreme Court justices Friday in a private conference.
While Texas and Mississippi filed appeals to defend their state bans, Lambda Legal filed the appeal against Louisiana's ban. The federal district court judge in the Louisiana case (President Reagan appointee Martin Feldman) was the only one – out of 46 federal district court judges to rule on such bans around the country – to find the ban constitutional.
Louisiana's ban, unlike the others, was upheld by a federal district court judge.
The 5th Circuit three-judge panel included James Graves Jr. (appointee of President Obama), Patrick Higginbotham and Jerry Smith (both appointees of President Reagan).
Lambda Legal's National Marriage Project Director, Camilla Taylor, argued against the Louisiana ban. She noted that the Supreme Court has previously struck down a Louisiana marriage law for violating equal protection (one designating the husband as the "head and master" over community property). She disagreed with Louisiana's contention that the national debate over marriage for same-sex couples is reason enough to preclude courts from reviewing the constitutionality of such laws. And she said the ban discriminates on both sexual orientation and sex.
Obama appointee Graves asked Taylor whether it would be "legally inconsistent" to rule that Louisiana has to recognize marriage licenses obtained by same-sex couples in other states but that it can refuse to issue licenses to same-sex couples in Louisiana.
Taylor said yes, citing Loving v Virginia, and said the arguments Louisiana proffered for denying marriage licenses and denying recognition of out-of-state licenses are the same and are "legally insufficient."
Attorney Stuart Duncan, arguing for Louisiana, said states are allowed to ban marriages based on things like age and blood relationship, and it should be able to do so regarding same-sex marriage.
