Federal appeals courts soon will hear arguments in gay marriage fights from nine states, part of a slew of cases putting pressure on the U.S. Supreme Court to issue a final verdict.
If the appeals judges continue the unbroken eight-month streak of rulings in favor of gay marriage, it could pave the way for the nation’s highest court to come down on the side of supporters.
If even one ruling goes against them in the four courts taking up the issue in the coming weeks, it would create a divide that the Supreme Court also could find difficult to resist settling.
“We’re going to be racking up more courts of appeals decisions, and every one we get puts more pressure on the Supreme Court to weigh in,” said Douglas NeJaime, a law professor at the University of California-Irvine. “It’s very likely the Supreme Court ultimately settles this question. Given how quickly things have moved, it’s hard for the court to avoid this in the short term.”
A three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati will hear arguments today from attorneys in six cases from Kentucky, Michigan, Ohio and Tennessee, the most of any federal appeals court so far.
Similar arguments are set for Aug. 26 in the 7th Circuit in Chicago on bans in Wisconsin and Indiana, and for Sept. 8 in the 9th Circuit in San Francisco on bans in Idaho and Nevada. The 5th Circuit in New Orleans is expected to soon set a date to hear arguments on Texas’ ban.
The flurry of arguments means an upcoming spate of rulings, possibly all issued this autumn, that could profoundly alter the nation’s marriage laws.
If the four federal circuit appeals courts rule in favor of gay marriage, then nine states with pending appeals stand to have their bans stricken down or be ordered to recognize out-of-state gay marriages: Ohio, Michigan, Tennessee, Kentucky, Texas, Indiana, Wisconsin, Idaho and Nevada, though the decisions likely would be put on hold pending appeal to the Supreme Court.
Five additional states under those four circuit courts have gay marriage lawsuits awaiting decisions by federal judges: Alaska, Arizona, Louisiana, Mississippi and Montana.
Observers say the 5th or 6th circuits could deliver the first victory for gay marriage opponents.
The three judges at the 6th Circuit set to hear gay marriage arguments Wednesday are Jeffrey S. Sutton and Judge Deborah L. Cook, both nominees of President George W. Bush, and Martha Craig Daughtrey, who was nominated by President Bill Clinton.
Among them, Sutton is considered to be the least predictable.
In 2011, he shocked Republicans when he became the deciding vote in a 6th Circuit ruling that upheld the Obama administration’s health care overhaul.
“This is the kind of thing where you could see the conservative with a libertarian bent coming out in favor of gay marriage, but who knows?” said Mark Tushnet, a constitutional law professor at Harvard. “Having done Obamacare and maybe screwed his own chances for the Supreme Court, Sutton may feel liberated to do what he thinks is the right thing and go for marriage equality, or he may try to rehabilitate himself and go against it.”
Still, opponents of gay marriage likely could rely on the heavily conservative 5th Circuit to give them a win. Plaintiffs in the case before that court include a Cincinnati man who wants his dead husband listed as married on his death certificate so they can be buried next to each other in a family-only plot, and a Knoxville, Tenn., couple who say they want to both be listed on their newborn daughter’s birth certificate.
Two federal appeals courts already have ruled in favor of gay marriage in split decisions, one in Denver in June and another in Richmond, Via., last week. On Tuesday, Utah formally filed its appeal of the June ruling in Denver’s 10th Circuit, asking the U.S. Supreme Court to take up the case and uphold the state’s ban.
The burst of action across the nation on gay marriage was spurred by a Supreme Court decision last year that struck down part of the Clinton-era federal Defense of Marriage Act but stopped short of forcing states to legalize or recognize gay marriage.
Since then, supporters of gay marriage have won more than 20 legal decisions declaring statewide gay marriage bans unconstitutional.
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