The issue of same-sex marriage headed back to the U.S. Supreme Court Friday as plaintiffs in a case challenging Ohio law prohibiting recognition of same-sex marriages performed in other states asked the high court to hear the case.
In a joint petition filed by the ACLU, Lambda Legal and the private firm Gerhardstein & Branch, the Supreme Court was asked to review a ruling issued last week by the 6th Circuit Court of Appeals upholding Ohio law prohibiting recognition of same-sex marriages performed in other states. The Ohio case covers two lawsuits, the plaintiffs of which are both widowers.
“The Sixth Circuit majority’s ruling robs married same-sex spouses and their children of dignity and legal respect from cradle to grave,” the petition states. “It squarely and irreconcilably conflicts with four other circuits on a question of pressing national importance—the right of committed same-sex spouses to lead their lives as married, protect each other and their children through marriage, and move securely among the states. The ruling can be expected to breed chaos in the courts, among employers, and, most fundamentally, in the lives of thousands of lesbian and gay families, who will have no assurance when they cross state lines that they will carry their marital statuses with them.”
In a 2-1 decision handed down Nov. 6, the 6th Circuit Court of Appeals upheld same-sex marriages bans in four states — Kentucky, Michigan, Ohio and Tennessee — breaking with other federal appeals courts that have considered the issue. Lawyers for the cases in Kentucky, Michigan and Tennessee are all expected to file petitions for writ of certiorari with the Supreme Court in coming days.
For the Supreme Court to hear a case it requires at least four justices to agree. The breakdown of those votes are not released by the court.
The decision by the 6th Circuit marked the first time a federal appeals court has upheld a state ban on same-sex marriage and presents a split among the circuit courts, which could encourage the Supreme Court to once again take up the issue of same-sex marriage and decide whether the Constitution guarantees same-sex couples the right to marry.
In October, the Supreme Court declined to hear cases challenging same-sex marriage bans in five states — Utah, Oklahoma, Virginia, Indiana and Wisconsin — thus allowing lower court decisions legalizing marriage equality in those states to stand. Because the Supreme Court left intact rulings by the 4th Circuit, 7th Circuit and 10th Circuit Courts of Appeals striking down same-sex marriage bans in those five states, those appeals courts’ decisions applied to six other states in those three circuits: West Virginia, North Carolina, South Carolina, Kansas, Colorado and Wyoming.
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On Thursday, Supreme Court Justice Clarence Thomas provided a rare glimpse of an apparent divide among the justices over taking up the same-sex marriage cases considered last month. In an order denying a stay in an unrelated immigration case in Arizona, Thomas issued a statement attached to the order that was joined by Justice Antonin Scalia noting that they only agreed to deny a stay in the Arizona case because it appeared unlikely a necessary four justices would join in agreeing to hear arguments in the case. “That is unfortunate,” Thomas wrote.
“Indeed, we often review decisions striking down state laws, even in the absence of a disagreement among lower courts,” he continued, noting the decision by the court to hear arguments in the challenge to California’s Proposition 8 in 2012. “But for reasons that escape me, we have not done so with any consistency, especially in recent months.” Thomas pointed to the decision not to hear cases concerning same-sex marriage bans in Utah, Oklahoma, Virginia and Wisconsin as well as the decision by the court to deny stays in same-sex marriage cases in Idaho and Alaska. One day prior, a Supreme Court order declining to put same-sex marriage on hold in Kansas noted that Thomas and Scalia, who are considered part of the court’s conservative wing, would have granted a stay.
Thomas wrote that the court could still act on a petition for a writ of certiorari in the Arizona immigration case, but pointed back to the actions of the court this term. “I hope my prediction about whether that petition will be granted proves wrong,” he wrote. “Our recent practice, however, gives me little reason to be optimistic.”
But that could change with the cases coming out of the 6th Circuit. Supreme Court Justice Ruth Bader Ginsburg said in September that if the 6th Circuit allowed same-sex marriage bans to stand “there will be some urgency” for the Supreme Court to step in.
UPDATE at 4:35 p.m. on Nov. 14: Lawyers for plaintiffs in the case challenging Tennessee’s same-sex marriage ban have also asked the Supreme Court to hear their case.
“This case provides an appropriate vehicle for the Court to address the critical constitutional issues on which the Sixth Circuit split from its sister courts,” the plaintiffs’ attorneys, who include representatives of the National Center for Lesbian Rights, wrote. Listed as the counsel of record on the petition is Douglas Hallward-Driemeier, a partner at the D.C. law firm Ropes & Gray who served as assistant to President George W. Bush’s solicitor general from 2004 to 2009.