Wednesday, October 08, 2014

Same Sex Marriage: What Happened Yesterday At The US Supreme Court?

I started to write a post about whether the State of Alaska should continue to fight a challenge to the state's same sex marriage ban.  I'll still do that, but I realized that not everyone understands the US federal justice structure and that I needed to explain that first.  [This took much longer than I expected, but it's helped me clarify for myself what happened yesterday and I hope it will make it easier for others who aren't lawyers.]

So, first the background:

The following is edited and reformatted from the Federal Judicial Center website to make it easier to follow.  Note, this is just looking at federal courts, not state or local courts.


 "Congress has divided the country into ninety-four federal judicial districts. 

In each district there is a U.S. district court. The U.S. district courts are the federal trial courts -- the places where federal cases are tried, witnesses testify, and juries serve. Within each district is a U.S. bankruptcy court, a part of the district court that administers the bankruptcy laws.

Congress uses state boundaries to help define the districts. Some districts cover the entire state, like Idaho. Other districts cover just part of a state, like the Northern District of California."


"Congress placed each of the ninety-four districts in one of twelve regional circuits."

Image from Federal Judiciary Center Website

"Each circuit has a court of appeals. If you lose a case in a district court, you can ask the court of appeals to review the case to see if the district judge applied the law correctly. There is also a U.S. Court of Appeals for the Federal Circuit, whose jurisdiction is defined by subject matter rather than by geography. It hears appeals from certain courts and agencies, such as the U.S. Court of International Trade, the U.S. Court of Federal Claims, and the U.S. Patent and Trademark Office, and certain types of cases from the district courts (mainly lawsuits by people claiming their patents have been infringed).
The Supreme Court of the United States, in Washington, D.C., is the highest court in the nation. If you lose a case in the court of appeals (or, sometimes, in a state supreme court), you can ask the Supreme Court to hear your appeal. However, unlike a court of appeals, the Supreme Court doesn't have to hear it. In fact, the Supreme Court hears only a very small percentage of the cases it is asked to review."
It's important to note that the Circuit Court of Appeals' decisions rule in their region.  So it's possible for Circuit Courts in different regions to rule differently.  Then the law covering some states would be different from the law covering other states.  In last year's rulings on same sex marriage, the decisions at the US Supreme Court impacted the states in the 2nd and 9th circuits where the cases came from.   When there's a conflict in rulings from different Circuit Courts of Appeal, then the Supreme Court has to weigh in.

Now, the details of what happened Monday at the US Supreme Court.

1.   What were the cases? From which states? From which circuits?
There were petitions from  seven cases (from five states).  In all cases, both the plaintiffs and the defense wanted the Supreme Court to hear the cases.  From a September article by Mother Jones, here are the cases:

1. Herbert v. Kitchen (Utah): SCOTUS briefly dealt with this case earlier this year. In December 2013, a federal district court struck down Utah's ban on same-sex marriage. Weddings began immediately. In January, the high court issued a temporary stay, putting a halt to marriages while the state's appeal was considered. In June, the 10th Circuit Court of Appeals upheld the lower court's ruling that the state's same-sex marriage ban was unconstitutional.

2. Smith v. Bishop (Oklahoma): First filed in 2004, this case originally sought both to overturn Oklahoma's ban on same-sex marriages and to recognize marriages performed in other jurisdictions. In January, a district court judge ruled that the state's ban is unconstitutional, but dismissed the portion of the lawsuit addressing marriages from other states, ruling that the plaintiffs lacked standing. Both sides appealed to the 10th Circuit Court of Appeals, which affirmed the district court on both counts. In its appeal to SCOTUS, the state of Oklahoma is asking the court to rule exclusively on the marriage question.

3. Bogan v. Baskin (Indiana): This case began as three separate suits filed on behalf of a widow and 11 couples. Several plaintiffs have same-sex marriage licenses from other states that are unrecognized in Indiana. In June, a district court judge consolidated the suits into Baskin, and struck down the state's ban on gay marriage. He did not stay the decision, allowing marriage licenses to be issued immediately. Earlier this month, the 7th Circuit Court of Appeals upheld the lower court's decision.

4. Walker v. Wolf (Wisconsin): In February, the American Civil Liberties Union filed this case on behalf of eight same-sex couples, three of whom had married in other places. In March, a district court judge denied the state's requests to dismiss the case. In June she ruled in favor of the plaintiffs, overturning Wisconsin's ban on same-sex marriage. Her ruling was unclear on whether marriages could begin or not: Still, clerks in some cities began marrying couples immediately. Earlier this month, the 7th Circuit Court of Appeals upheld the lower court's decision.

5, 6, and 7. Rainey v. Bostic, Schaefer v. Bostic, and McQuigg v. Bostic (Virginia): These three cases are different iterations of a suit filed in July 2013 by plaintiffs Timothy Bostic and Tony London, who seek to get married in Virginia. Carol Schall and Mary Townley joined the case in September 2013. They were legally married in California in 2008, but their union is not recognized in the Old Dominion. This has made it impossible for Schall to formally adopt her own daughter. In February, a district court judge ruled on all three cases, concluding that the state's laws barring in-state gay marriages and prohibiting recognition of out-of-state marriage licenses is unconstitutional. In July, the 4th Circuit Court of Appeals affirmed the lower court's ruling. A fourth case, Harris v. Rainey, a class action suit, has been incorporated into Rainey v. Bostic.

2.  What were the decisions?

The Supreme Court declined to hear all seven cases.

3.  What are the consequences?  Take this with a grain of salt.  Here's a pretty fast analysis from a Scotus Blog post,  but Scotus  Blog- Supreme Court Of The United States - had a lot more updates that suggest there's still some room for maneuvering in these states before the dust settles.  For example Idaho (and by extension Nevada) got a stay from Justice Kennedy on 9th Circuit's ruling to legalize same sex marriage. But I'm sure the dust will settle with same sex couples able to marry.
"First, as a direct result of Monday’s action, same-sex marriages can occur when existing lower-court rulings against state bans go into effect in
  • Virginia in the Fourth Circuit
  • Indiana and Wisconsin in the Seventh Circuit, and  
  • Oklahoma and Utah in the Tenth Circuit."
"Second, such marriages can occur when the court of appeals rulings are implemented in federal district courts
  • in three more states in the Fourth Circuit (North and South Carolina and West Virginia) and 
  • in three more states in the Tenth Circuit (Colorado, Kansas, and Wyoming).  
The other states in the three circuits where bans have been struck down had already permitted same-sex marriage, under new laws or court rulings (Illinois, Maryland, and New Mexico, which have been counted among the nineteen states in that category)."
"Third, four other circuits — the Fifth, Sixth, Ninth, and Eleventh — are currently considering the constitutionality of same-sex marriages.  Of those, the Ninth Circuit — which had earlier struck down California’s famous “Proposition 8″ ban and uses a very rigorous test of laws against gay equality — is considered most likely to strike down state bans.  If that happens, it would add five more states to the marriages-allowed column (Alaska, Arizona, Idaho, Montana, and Nevada), which would bring the national total to thirty-five."

4.  What's still out there?

The court declined to hear seven cases from five states coming from three regional judicial circuits.  This means the court isn't going to make any statements for now on the legality of same sex marriage beyond what they said in the two cases last year.

Last year's cases came from the 2nd and 9th Circuits. As mentioned above, the US Supreme Court's rulings on those cases only covered those two districts.  Yesterday's ruling covered  the 4th, 7th, and 10th Circuits.

That leaves the 1st, 2nd, 3rd, 5th, 6th, 9th, 11th, and 12th Districts.  I've poked around online to see what is happening in these circuits.  This isn't comprehensive, but gives a sense of what's happening.

The 1st, 2nd, and 3rd Circuits cover New England and the Northeast from Maine down to Pennsylvania, Delaware, and New Jersey.  In all these states same sex marriage was legal before yesterday's court ruling.

4th Circuit was covered yesterday, and as mentioned in 3) above, the other states, besides Virginia, North and South Carolina and West Virginia it's just a matter of implementation of the appeals court's rulings before same sex marriages will take place.

5th Circuit which includes Texas, Louisiana, and Mississippi has yet to rule on cases on appeal.  One Texas judge ruled the ban on same sex marriage unconstitutional and a Louisiana judge upheld the Louisiana ban.  There are a couple of other related cases in both states - a lesbian couple, married out of state, were denied the right to divorce in Texas.  See more details here.   If the 5th Circuit were to rule that the bans were constitutional, there'd be a split in Circuit Court rulings and the US Supreme Court would probably have to take the case to resolve it.

6th Circuit - from Freedom to Marry
"On August 6, six different legal cases involving the freedom to marry were heard by the United States Court of Appeals for the 6th Circuit, which covers Kentucky, Michigan, Ohio, and Tennessee. In each state, federal judges have ruled in favor of marriage for same-sex couples. . .  A ruling is expected at the 6th Circuit this fall."
7th Circuit was covered in yesterday's decision.  See 3 above.

8th Circuit  includes North and South Dakota, Minnesota, Iowa, Nebraska, Missouri, and Arkansas. It upheld a ban on same sex marriage in 2006.  However, an Arkansas federal judge has ruled against the same sex marriage ban, but the case has not been heard by the Court of Appeals.

From KELO:
"[A] South Dakota case Rosenbrahn v. Daugaard is currently before the South Dakota District Court on a motion to dismiss filed by the State."
9th Circuit  is also covered in 3 above.  This is where this post began, because I wanted to write about the ethical issues the governor and attorney general of Alaska might consider in determining whether to continue to oppose this challenge to the state's ban considering that the 9th Circuit Court of Appeals is very likely to overturn the ban.

10th Circuit was covered yesterday because two of the appeals came from Oklahoma and Utah.

11th Circuit  covers the Southeast - Alabama, Georgia, and Florida. In two Florida cases  - apparently state cases because they are headed for the Florida Supreme Court - judges ruled the states ban unconstitutional.  In August 2014 a US District Court ruled the Florida ban on same sex marriage unconstitutional.   There's also a case in its early stages in Alabama.  And in Georgia, according to WMAZ,
 "a lawsuit challenging Georgia's ban on gay marriage is still pending in federal court. It's called Innis v. Aderhold, and it was filed by several same-sex couples."
Finally, there's the DC Circuit.  Same sex marriage is legal in the District of Columbia already.

If the Circuit Courts of Appeal all rule against same sex marriage bans, perhaps the US Supreme Court would just leave things as they did yesterday.  If one or more Circuit Courts of Appeals allows a ban to stand, then  there would be more pressure for the US Supreme Court to take the case(s) to resolve the conflicts. 

Researching this was complicated by the fact that most of the websites that had maps of the status of same sex marriage were updated in the last two days making it harder to see where things stood before Monday's ruling.

The Pew Forum has an interactive map that where you can change the date and see the status of same sex marriage in all the states from 1995 to 2014.

And here's a Wikipedia chart on the status of same sex marriage throughout the US.

If you've seen this post a couple of times, it's because feedburner isn't working right and I'm reposting it hoping it will catch.

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