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The Race Between the Ninth and Tenth Circuits

January 22, 2014

Among the host of federal lawsuits challenging states’ exclusion of same-sex couples from the right to marry, the two farthest along are pending in the federal courts of appeals for the ninth and tenth circuits. They arise respectively from challenges to anti-marriage equality laws in Nevada and Utah.

The Ninth Circuit Court of Appeals handles federal appeals from district courts in Colorado, Kansas, Nevada, Oklahoma, Utah and Wyoming. The Tenth Circuit Court of Appeals handles appeals from Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

Nevada voters imposed a state constitutional ban on same-sex marriage in 2002. In 2013, the state legislature began the process of removing that constitutional ban, but that process can’t be completed before 2016. Meanwhile, the Lambda Legal Defense and Education Fund filed suit in April 2012 in the Nevada federal court. Lambda represents several same-sex couples contending that the state constitutional ban on same-sex marriage violates federal constitutional guarantees of equal protection.

In November 2012, the federal court ruled against the plaintiffs and dismissed the case. The plaintiffs appealed, and the court of appeals put the case on hold pending the outcome of the Supreme Court cases on same-sex marriage (Hollingsworth v. Perry) and the federal Defense of Marriage Act (United States v. Windsor). Once those cases were decided late last June, the court of appeals picked up the Nevada case again. Briefing was just concluded on January 2, and oral argument has not yet been scheduled.

Utah has prohibited same-sex marriage by statute since 1995, and by voter-approved constitutional amendment since 2004. Same-sex couples who want to get married sued in Utah federal court in March 2013. The court ruled in their favor in December 2013 – the first federal court to rule on same-sex marriage in the aftermath of the two Supreme Court decisions. Both the district judge and the court of appeals refused to stay the judge’s ruling, so same-sex marriage was legal in one of our reddest states for 17 days, until the Supreme Court stayed the ruling.

During those 17 days, more than 1,300 same-sex couples got marriage licenses. Evidently the Utah sky did not fall, and a Salt Lake Tribune poll taken earlier this month found, remarkably, that Utahans are now evenly split on the issue: 48 percent favor and 48 percent oppose allowing same-sex marriage in Utah.

When the Court of Appeals for the Tenth Circuit denied the stay, it ordered an “expedited” briefing schedule. “Expedited” in this case means that briefing is to be completed by February 25, 2014, with oral argument to be held some time in March.

If the tenth circuit holds oral argument in March, that may well be before oral argument in the ninth circuit’s much older case. Then it’s a race to issue decisions – which could be anywhere from a few weeks after oral argument to a more common few months.

When a court of appeals rules, the losing party has 90 days to ask the Supreme Court to review the case. My prediction is that the Supreme Court won’t want to consider same-sex marriage for at least another year or two – I have pointed out that the Court did not rule on anti-miscegenation laws until only 16 states still had them, and did not rule on anti-sodomy laws until only 14 states still had them. As of today, 33 states still prohibit same-sex marriage.

The Supreme Court won’t feel real pressure to rule earlier unless the courts of appeals issue conflicting decisions. Of course there can’t be conflicting decisions until there are at least two decisions. The first two are almost certain to be the Nevada and Utah cases, from the ninth and tenth circuit courts of appeals.

Meanwhile, there are two state court cases that have reached state supreme courts, in Pennsylvania and Texas. Pennsylvania sued a county official to stop him from issuing marriage licenses to same-sex couples unless and until the legislature or courts invalidated Pennsylvania’s same-sex marriage ban. Briefs were submitted to the Pennsylvania Supreme Court on December 2 and January 16.

In Texas, two same-sex couples legally married elsewhere sued to require Texas to recognize their marriages for purposes of litigating their divorce claims. The Texas Supreme Court heard oral arguments on November 5.

State supreme court decisions that are based solely on state law cannot be appealed to the Supreme Court, so these decisions may not have effect outside of Pennsylvania and Texas. But if a state supreme court rules on federal constitutional grounds, the losing party can ask the Supreme Court to take the case.

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