CINCINNATI — After a series of developments on same-sex marriage this week, there’s growing anticipation for a ruling by the federal appeals court based in Cincinnati.
A three-judge panel of the 6th U.S. Circuit Court of Appeals heard arguments two months ago on challenges to gay marriage bans in four states. Its eventual ruling could help determine when or even whether the U.S. Supreme Court takes up the issue.
The high court Monday declined to hear appeals from five states seeking to prohibit gay and lesbian unions, and the San Francisco-based 9th U.S. Circuit Court of Appeals on Tuesday invalidated bans in Idaho and Nevada. Supreme Court Justice Anthony Kennedy on Wednesday temporarily blocked the 9th Circuit’s ruling.
There’s been no indication of a timetable for 6th Circuit action on Ohio, Kentucky, Michigan and Tennessee cases. The judges heard arguments on six cases from the four states Aug. 6 in the biggest hearing of its kind on the issue.
“It literally could be any day now,” said Pierre Bergeron, a Cincinnati attorney with deep experience in federal appellate cases, including having clerked for a 6th Circuit judge.
“They (the judges) appreciate that it’s a very significant case, and they want to get a decision out,” Bergeron, of Squire Patton Boggs, said Wednesday. “On the other hand, it’s also a very complicated case … and they want to make sure they get it right. So that points to the direction that it may take longer.”
He said there’s also the possibility of a split panel and a dissenting opinion being written by the judge who disagrees, and the second judge in the majority could want to write a separate concurring opinion.
U.S. Supreme Court Justice Ruth Bader Ginsburg told a Minnesota audience last month that the 6th Circuit’s ruling would likely influence the high court’s timing, adding “some urgency” if it allowed same-sex marriage bans to stand, which would create a division among appellate courts. However, if the 6th follows others in favor of same-sex marriage, that would mean there is “no need for us to rush” taking up the issue, Ginsburg said.
Cincinnati attorney Al Gerhardstein, who represents plaintiffs in the two Ohio cases, made supplemental filings this week in the 6th Circuit in the aftermath of Monday’s Supreme Court decision, saying the decision not to hear the cases lets other rulings stand that support his clients’ arguments that “discriminating against same-sex couples with regard to marriage laws” is unconstitutional.
He said with Monday’s decision and the 9th Circuit ruling Tuesday, that after some additional legal filings, as much as 65 percent of the nation’s population will live in states allowing same-sex marriage.
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