Marriage Equality in the Courts of Appeal

EqualCongress may be on recess for the next five weeks, but during this time a number of same-sex marriage cases will be heard by the Courts of Appeal.

On Wednesday, August 6, at 1:00 p.m. the Sixth Circuit Court of Appeals will hear six same-sex marriage appeals from four states. Notice to the Media (.pdf):

DeBoer, et al v. Snyder, et al, Case No. 14-1341 (E.D. Michigan)

Obergefell, et al v. Himes, et al., Case No. 14-3057 (S.D. Ohio) consolidated with Henry, et al. v. Himes, Case No. 14-3464 (S.D. Ohio)

Bourke, et al v. Beshear, et al, Case No. 14-5291 (W.D. Kentucky). consolidated with Love, et al. v. Beshear , Case. No. 14-5818 (W.D. Kentucky)

Tanco, et al. v. Haslam, Case No. 14-5297 (M.D. Tennessee)

 The Sixth Circuit Court of Appeals is dominated by conservative judges appointed by Republican presidents. So far, every court since the U.S. Supreme Court marriage decision in U.S. v. Windsor in 2013 has struck down state same-sex marriage bans as a violation of the Equal Protection Clause of the 14th Amendment. If there is a Court of Appeals panel that could go the other way and create a conflict among the circuits, it is the Sixth Circuit (and the equally conservative Fifth Circuit).

On Tuesday, August 26, the Seventh Circuit Court of Appeals will hear two same-sex marriage appeals from Indiana and Wisconsin:

Baskin v. Zoeller (formerly Baskin v. Bogan), Case No. 14- 2386 (S.D. Indiana)  consolidated with Lee v. Pence, Case No. 14-2387 (S.D. Indiana) and Fujii v. Commissioner of the Indiana State Dep’t of Revenue, Case No. 14-2388 (S.D. Indiana)

Wolf, et al v. Walker, et al, Case No. 14-2526 (W.D. Wisconsin)

On Monday, September 8, at 9:30 a.m. the Ninth Circuit Court of Appeals will hear three same-sex marriage appeals from three states:

Jackson v. Abercrombie, Case No. 12-16995 and 12-16998 (Hawaii) previously consolidated with Sevcik v. Sandoval, Case No. 12-17668 (Nevada). (The Hawaii legislature authorized same-sex marriage in 2013, which should result in dismissal of the appeal from Hawaii).

Latta v. Otter, Case No.  14-35420 and 14-35421 (Idaho)

Geiger v. Kitzhaber, Case No. 35-427 (Oregon)

The Ninth Circuit Court of Appeals cases will be determined under the strict scrutiny standard of review, now that the Ninth Circuit Court of Appeals decision in SmithKline Beecham v. Abbott Laboratories is binding precedent. It is almost a certainty that the Ninth Circuit Court of Appeals will strike down the state same-sex marriage bans as unconstitutional.

Last week, the opening brief was filed in the challenge to Texas’ same-sex marriage ban in the Fifth Circuit Court of Appeals. Arguments have not yet been scheduled in that case.

The two Courts of Appeal that have already ruled on state same-sex marriage bans, the Tenth Circuit and the Fourth Circuit, are being appealed to the U.S. Supreme Court. Bishop v. Smith, the challenge to Oklahoma’s same-sex marriage ban is headed to the Supreme Court, along with Kitchen v. Herbert from Utah (10th Circuit). Bostic v. Rainey, the 4th Circuit case from Virginia is also headed to the Court. Petitions are expected to be filed in all three cases within three months. (h/t Equality on Trial).

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