On Wednesday, federal courts in Arkansas and Mississippi struck down the same-sex marriage bans in each state. Lyle Denniston at SCOTUSblog reports,
Mississippi, Arkansas same-sex marriage bans fall (UPDATED):
Refusing to postpone acting until state courts rule on the issue, a federal judge in Little Rock on Tuesday struck down the Arkansas ban on same-sex marriage. This was the second ruling against such a ban in a state within the geographic region of the federal Eighth Circuit, setting up another test case for the federal appeals court in that region — an area for which there is no recent appeals court ruling on the controversy.
U.S. District Judge Kristine G. Baker found that the state ban violated the right of two lesbian couples to join equally in the fundamental constitutional right to marry. One of the couples was married in Iowa and seeks to have that marriage officially recognized in Arkansas; the other couple seeks to marry A state judge in Arkansas has also struck down the state ban, and the Arkansas Supreme Court held a hearing last Thursday on the state’s appeal in that case.
A federal judge in Missouri has ruled that the ban in that state is unconstitutional, but Missouri has not yet appealed that ruling to the U.S. Court of Appeals for the Eighth Circuit. That judge has temporarily blocked his ruling pending a state appeal; if there is no appeal, his ruling will go into effect on December 8.
Both the judges, in the Arkansas and Missouri cases, rejected arguments by state officials that the Eighth Circuit had settled the same-sex marriage issue in a ruling in a Nebraska case in 2006. The judges in the new district court rulings found that the precedent was not controlling, because the 2006 decision was based on other legal grounds and also hasd been overtaken by more recent constitutional developments.
Judge Baker put her decision on hold to allow Arkansas officials to pursue an appeal.
UPDATED Wednesday 12:11 a.m. The wave of federal court rulings against state bans on same-sex marriage swept into the Deep South on Tuesday, as a federal judge in Mississippi struck down that state’s prohibition. In a fervent defense of the role of the courts in protecting individual rights against majority voter sentiment, and a lengthy critique of Mississippi’s history against gay rights, U.S. District Judge Carlton Wayne Reeves of Jackson found the ban to be a violation of the Fourteenth Amendment guarantee of equality. He put his ruling on hold for two weeks to allow the state to appeal to the U.S. Court of Appeals for the Fifth Circuit, where conflicting rulings from Louisiana (upholding a ban) and Texas (nullifying a ban) are already pending. (The post below discusses a ruling in Arkansas earlier in the day.)
The Fifth Circuit Court of Appeals, based in New Orleans, has scheduled arguments in challenges to same-sex marriage bans from Texas and Louisiana for January 9. 5th Circuit to hear arguments in Texas, Louisiana marriage cases on January 9; Louisiana plaintiffs ask Supreme Court to take up case:
The Texas case has been in the appeals court since March; the Louisiana case only recently reached the court.
The district court judge hearing the Louisiana case upheld the ban, while the one hearing the Texas case struck down that state’s ban.
It’s not clear if arguments will be heard before or after the Supreme Court has a chance to decide whether to review challenges from the Sixth Circuit Court of Appeals. It’s possible the Fifth Circuit appeals would be placed on hold if the Supreme Court does take up the issue of same-sex marriage.
UPDATE: Plaintiffs in the Louisiana same-sex marriage case, represented by Lambda Legal, filed a petition in the Supreme Court asking them to take up the case before judgment in the appeals court.
Already awaiting the Supreme Court are four same-sex marriage petitions from four states located in the region of the Sixth Circuit, challenging a ruling by that circuit which came after Judge Feldman’s ruling and upheld bans in Kentucky, Michigan, Ohio, and Tennessee. Lyle Denniston at SCOTUSblog reports, New same-sex marriage case at the Court (UPDATED):
The Louisiana couples’ lawyers, in urging the Supreme Court to take on their case now along with any of those it accepted from the Sixth Circuit, made four points in favor of early review of the Louisiana case:
First, the judge’s decision in favor of the ban was the first in the nation to uphold a state ban in the wake of the Supreme Court’s 2013 decision in United States v. Windsor, which set off the flurry of lower court rulings on the validity of state bans. The Windsor decision struck down a part of a federal law, the Defense of Marriage Act, that denied federal marital benefits to already-married same-sex couples. It did not settle the question of state power to prohibit such marriages.
Second, in a single case, it raises both the constitutionality of banning new same-sex marriages as well as denying recognition of existing same-sex marriages, with the couples involved directly challenging both.
Third, the case “provides an optimal vehicle to clarify growing confusion regarding the limits of judicial deference to democratic processes when the majority has denied constitutionally protected rights to members of a minority group.”
And, fourth, it offers “geographic range” as the Court considers a question of national importance. If granted review along with any cases from the Sixth Circuit, the filing said, the Court would have before it cases in states “from the Canadian border to the Gulf of Mexico.”
The Louisiana case is now before the same Fifth Circuit panel that is reviewing a case from Texas, where a federal judge struck down a state ban on same-sex marriages. The cases are due to be heard back to back on January 9.
The Supreme Court has not yet indicated when it will take its first look at the group of five new petitions on the constitutional dispute. It has complete discretion to grant some or all of the cases, or to deny all of them. The prospects for review, however, have been enhanced by the split among federal appeals courts.