Louisiana adds to momentum for Supreme Court review of gay marriage

U.S. Supreme Court

U.S. Supreme Court

A second state — Louisianatold the U.S. Supreme Court on Tuesday that the Justices should consider taking on the constitutional dispute over same-sex marriage without waiting further. It is important, the state said in urging prompt review of a federal judge’s decision upholding Louisiana’s ban on such marriages, that the Court examine the dispute in a broad context to reach all of the issues.

With the filing of Louisiana’s views, paralleling the suggestion for early review made by Michigan in another case, the Supreme Court now has two new cases nearly ready for early consideration, perhaps in time for a final decision before the end of the current Term.

Other cases on the issue are pending, but if the Court waits for all of the filings to be submitted in all of the cases, that could slow the process.

If the Court does move now to review any of the new appeals, Louisiana — like Michigan — wants its own ban on same-sex marriages upheld, its new filing made clear. But, at this stage, the two states have stressed the importance of advancing the controversy toward a final resolution by the only court with authority to do that, in a case or cases which lay out the issues that will shape the outcome.

Louisiana said it supports a grant of review of the Michigan case, DeBoer v. Snyder, but wants the Justices in doing so to also put on their decision docket the case of Robicheaux v. George, in which a federal judge in New Orleans ruled in favor of the state and against the challenging same-sex couples.

Although Michigan’s ban, like Louisiana’s, not only forbids same-sex couples from getting married in the first instance but also refuses to recognize same-sex marriages performed in other states, the only couple challenging the Michigan ban is testing the so-called celebration issue while the seven couples who have filed the Louisiana case together are testing both that issue and the so-called recognition question.

The U.S. Court of Appeals for the Sixth Circuit, in the decision upholding the Michigan ban, also upheld recognition bans in other states in its region. Even so, the Court may have some hesitation to reach both questions if the petition from Michigan is the only one it accepts for review. That is why the twin-issue case from Louisiana was promoted by state lawyers as a broader test case.

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But, to grant the Louisiana case at an early point, the Supreme Court would have to agree to let that case skip the level of a federal appeals court. After the federal trial judge upheld both Louisiana bans, the same-sex couples involved appealed the case to the U.S. Court of Appeals for the Fifth Circuit, where it is now scheduled for a hearing on January 9.

The couples involved in the case have since asked the Supreme Court to grant the case without waiting for the Fifth Circuit’s review. That is the move that state officials supported on Tuesday.

As of now, the Court has five petitions from which to choose, if it is ready to choose.  In addition to the Louisiana and Michigan petitions, there are filings testing the bans in KentuckyOhio, and Tennessee.

In addition, state officials in South Carolina said this week that they will be filing their own petition, asking the Justices to leap-frog an appeal the state now has pending at the U.S. Court of Appeals for the Fourth Circuit.  The South Carolina filing has not yet been made.

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