When it comes to same-sex marriage, the current state of play can be a little confusing, consisting as it does of a mixture of legislative and judicial decisions. Since the US Supreme Court has declined to hear, for now at least, cases that deal with this issue, we are left with a patchwork of laws passed by referenda and legislatures and state and federal courts. We have basically three different situations:
- One consists of states that have allowed same-sex marriage either because laws have been passed in favor of it by referendum or by the legislature, or the courts have overturned whatever state bans existed and the state and federal Appeals Courts have upheld those verdicts.
- Then we have those states where a federal district court has overturned the ban but the Appeals Court has not yet adjudicated the case.
- Then we have those states that still have bans that have not been overturned either because no cases have been filed or the cases are pending.
To understand what the current legal situation is concerning the right to same-sex marriage, it is necessary to have some idea of the patchwork of jurisdictions that make up the federal court system.
As the map indicates, there are eleven numbered Appeals Courts that are defined by geography and encompass more than one state, plus one for Washington DC, and a thirteenth court called the Court of Appeals for the Federal Circuit that deals with somewhat specialized federal matters. There are 94 district courts in the twelve geographical Appeals Courts.
Typically, a case bought in a federal court is first adjudicated in a district court and the verdict is strictly binding only within that judicial district. All such cases have the right to appeal to the Appeals Court under which it falls and a verdict by that court becomes the binding precedent on all the states that fall within its jurisdiction.
Just days after the Supreme Court made its decision not to accept appeals from the Fourth, Seventh, and Tenth circuits, the Ninth Circuit also issued a verdict overturning same-sex marriage bans in cases arising from Idaho and Nevada. Alaska, Arizona, and Montana also have cases pending from the Ninth circuit jurisdiction and thus are likely to be decided similarly.
Lyle Denniston summarizes the current state.
With developments since Monday’s refusal by the Supreme Court to get involved in the constitutional controversy at this point, it now seems clear that the same-sex marriage campaign has succeeded — or very soon will — in thirty-five of the fifty states, plus Washington, D.C. That is the combined result of federal and state court rulings, actions of voters in passing ballot measures, passage of new laws by state legislatures, and the Supreme Court’s refusal to second-guess the near-unanimity of federal court rulings in favor of gay and lesbian marriage.
But Idaho appealed for a stay pending a review by the full Appeals Court or the Supreme Court and late yesterday Justice Kennedy granted it and then revised his order, creating much confusion as to what he is thinking. So the ban remains for now in Idaho.
This article gives a state-by-state breakdown of where things stand legally both in terms of state courts and federal courts. There are still four Appeals Court jurisdictions where the courts have not made a determination.
Fifth Circuit: A federal district court judge in Texas has ruled that the state’s ban on same-sex marriage is unconstitutional. That has been appealed but oral arguments have not yet been scheduled. Louisiana has the sole federal district court judge to uphold such bans and this too has been appealed. Mississippi has not had a federal case on this issue.
Sixth Circuit: The Sixth Circuit heard oral arguments two months ago in six same-sex marriage cases (from Tennessee, Michigan, and two each from Ohio and Kentucky) but has not as yet issued a decision though one is expected soon.
Eighth Circuit: No case is pending before the Appeals Court. Cases are pending in federal courts in Arkansas, North and South Dakota, and two in Missouri. In Nebraska a federal judge in 2005 ruled that the ban was unconstitutional but was reversed by the Eighth Circuit Appeals court. This verdict was not appealed to the US Supreme Court, likely because they thought that the time was not right. The Appeals Court decision was in 2006, close to the peak of anti-gay marriage fervor and long before the tide turned in favor and the 2013 Windsor case led to a snowball effect of cases overturning the bans. Same sex marriage became legal in Iowa and Minnesota without going through the federal courts.
Eleventh Circuit: A federal district judge in Florida ruled the ban to be unconstitutional but stayed his order. Briefs for this appeal have not yet been filed in the Appeals Court. Cases are pending in federal district courts in Alabama and Georgia.
Dale Carpenter says that the Fifth, Eighth, and Eleventh circuits are all more conservative in makeup than the other Appeals Courts and thus more likely to uphold the bans. So the game is not over yet.
William Eskridge looks at what we can expect to see in the coming months.
The Court’s action yesterday gives a strong boost to the marriage equality movement, partly because it will force more public deliberation about this issue all over the United States. As a long-time supporter of marriage equality, I am confident that the more the matter is publicly deliberated, and the more lesbian and gay couples are able to “come out” as married, the greater will be the support for marriage equality in the nation as a whole.
Specifically, there will be public deliberation not only by lower-court judges in states still excluding lesbian and gay couples, but also by state officials, by religious and other groups who have traditionally taken public positions, by leaders of the Republican Party, and by private citizens. The Supreme Court’s action puts everyone on the spot: Do you have a good reason to exclude these committed couples, many raising children, from civil marriage?
Eskridge is hopeful and says that the slower and more deliberate way that things are unfolding will perhaps lead to a better outcome in which even opponents become resigned to the reality of same-sex marriage.