CINCINNATI – A slew of appeals court cases around America on whether gay and lesbian couples have a right to marry are putting pressure on the U.S. Supreme Court to issue a final verdict.
Federal appeals courts covering nearly half the United States will soon hear a flurry of arguments. That means an upcoming spate of rulings, possibly all issued this autumn, could profoundly alter U.S. marriage laws.
If the appeals courts continue the unbroken eight-month streak of rulings in favor of gay marriage, that could make it easier for America’s highest court to come down on the side of supporters.
If, however, 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.”
Two federal appeals courts already have ruled in favor of gay marriage in split decisions, one in Denver in June and another in Richmond, Virginia, last week .
The burst of action across America 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. The court’s majority ruled that it was unconstitutional for the law to deny federal benefits to same-sex married couples 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.
Gay marriage is legal in 19 states and the Washington capital district.
A three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati will hear arguments from attorneys in six cases from Kentucky, Michigan, Ohio and Tennessee, all Wednesday, the most of any federal appeals court so far.
Similar arguments are set for Aug. 26 in the 7th Circuit in Chicago, for bans in Wisconsin and Indiana, and for Sept. 8 in the 9th Circuit in San Francisco, for bans in Idaho and Nevada. The 5th Circuit in New Orleans is expected to soon set a date to hear arguments on Texas’ ban.
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 altogether or 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 for a Supreme Court ruling.
Five additional states under those four circuit courts have gay marriage lawsuits awaiting decisions by federal judges: Alaska, Arizona, Louisiana, Mississippi, Louisiana, and Montana.
Observers say the 6th or 5th circuits could deliver the first victory for gay marriage opponents.
Carl Tobias, a law professor at the University of Richmond, said he could see the 6th ruling in either direction, considering the unpredictability of one of its judges.
Still, opponents of gay marriage likely could rely on the 5th Circuit to give them a win. The court is heavily conservative, and the odds of a majority or full panel of Republican nominees is much likelier there.
Plaintiffs in the 6th Circuit case 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 Tennessee couple who say they want to both be listed on their newborn daughter’s birth certificate.