Same-sex Marriage–The Next Step

Since Justice Kennedy openly invited challenges to state bans on same-sex marriage in last year’s Windsor case, there has been a string of federal district court rulings, unanimously in favor of SSM. Today the first appellate court hearing to review one of these cases will be heard in the 10th Circuit, reviewing the Utah District Court’s decision overturning that state’s SSM ban.

This is just the first, with more to come in other circuits. A hearing by the Supreme Court is inevitable, and having cases heard by the appellate courts now makes it possible, perhaps likely, that SCOTUS will hear a case in their next term, that starts this October.

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9 thoughts on “Same-sex Marriage–The Next Step

    • All District courts are bound by their Circuit’s ruling. But that doesn’t mean the executive branches would necesarily start issuing marriage licenses right away. Someone might still have to sue in a district court to force the executive’s hand (usually the Secretary of State). But with a firm Circuit ruling, the District court could dispense with a full trial/hearing and issue a summary ruling.

      But also, county clerks in many states have some degree of autonomy, or at least initiative, and could respond to a favorable Circuit ruling on their own by starting to issue marriage licenses, leaving the Sec State or Attorney General or Governor to decide if it’s worth the trouble of trying to stop them.

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      • Actual experts feel free to correct me if I’m wrong, but:

        In this, case, circuit court precedent is unlikely to matter, because the ruling will almost certainly be stayed until a Supreme Court ruling.

        Of course, technically everything James says applies to a SCOTUS ruling just like it does to a ruling from the 10th circuit, but if the nine decide in favor of SSM, it’s unlikely that state-level executives will need any hand-forcing.

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      • the ruling will almost certainly be stayed until a Supreme Court ruling

        Quite likely. But in this case I can see dome circuit court judges saying, “Ah, screw it; this is the most significant civil rights issue in decades, I’m not going to stay it, I’m going to make it difficult for SCOTUS to overrule me by letting marriages go on so its a fait accomopli.”

        Maybe.

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      • Which is sort of what already happened at the district level in this case, as well as in Perry. But in each circumstance, SCOTUS itself overruled and stayed the ruling. I don’t see why that would be different if the 10th circuit rules in favor of Kitchen et al.

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      • That would depend which Supreme heard the appeal for a stay, at least if any of them had the interest in p.o.ing the conservatives. Which I doubt any do. And for the record, a bit of googling tells me Sotomayor is assigned to the 10th.

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      • When the district Judge refused to stay his own order, that was also Sotomayor, and yet there’s a stay in Utah right now. My understanding is that even if Sotomayor doesn’t want to issue the stay, her denial of the petition can be appealed to the full court. (Which seems to have happened unofficially in the case of the district court ruling–rather than wait for the parties to appeal, Sotomayor just asked her fellow justices to vote on whether a stay should be granted)

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