Will A Wave of Court of Appeals Rulings Turn the Tide on Same-Sex Marriage Bans?

With Friday's ruling in Michigan and the State of Michigan promising to appeal there are now or soon will be marriage equality cases on the dockets of the 4th, 5th, 6th, 9th and 10th Circuit Courts of Appeal.  As the New York Times reports, many legal experts expect that one or all of these Courts of Appeal will strike down state bans on same sex marriage.  The results of these rulings may well force the U.S.Supreme Court to resolve the issue once and for all.  Here are article highlights:

With a slew of cases barreling toward federal appeals courts, almost certainly including the decision Friday that overturned Michigan’s restrictive marriage amendment, the legal battle over same-sex marriage is entering a new and climactic phase. Decisions in the coming months will resonate beyond individual states across entire regions and may impel the Supreme Court to revisit the issue sooner than it wished. 

Legal experts say the country is entering what one called a “marriage spring” and predict that several of the circuit courts, which hold sway over a group of states, will rule that state laws limiting marriage to a man and a woman are unconstitutional.

Enforcement of decisions may well be delayed while the Supreme Court takes one or more of them for review, with a decision then possible by June 2015.

But if the Supreme Court demurs, those rulings will become law throughout those circuits, requiring many more states to join the 17 that have already authorized same-sex marriage.

“This is the penultimate act,” said Michael C. Dorf, a constitutional expert at Cornell University Law School, of the sudden wave of federal court hearings. It will start in Denver in April as the United States Court of Appeals for the 10th Circuit considers rulings that overturned marriage limits in Utah and Oklahoma.

Like many other legal scholars, Mr. Dorf predicts that same-sex marriage proponents will win many of the circuit-level decisions, which are generally handed down by three-judge panels.

Since June, when the Supreme Court required the federal government to recognize married same-sex couples and suggested that discriminatory laws were rooted in nothing but prejudice, rights advocates have won an uninterrupted series of decisions in federal district courts. Restrictive amendments or laws have been declared unconstitutional in Utah, Oklahoma, Virginia, Texas and Michigan, and partial decisions, requiring states to recognize out-of-state marriages, have been handed down in Kentucky, Ohio and Tennessee.

In addition to the Denver hearings next month, the Fourth Circuit, based in Richmond, will hear arguments in the Virginia case in May. These cases are likely to be decided by summer or fall.

In other regions, hearings have not yet been scheduled but are considered very likely this year in the Ninth Circuit, in San Francisco, regarding a 2012 decision that upheld Nevada’s restrictive law. They also could occur this year in the Fifth Circuit, in New Orleans, for the Texas case, and in the Sixth Circuit, in Cincinnati, for cases from Michigan, Ohio and Kentucky. 

Given the consistency of recent court decisions and the signals given by the Supreme Court in its ruling in June, many experts predict that some if not most of these circuit panels will uphold marriage rights for gay and lesbian couples. That could upend law in many conservative states.

The Supreme Court will be all but forced to decide if, as appears possible, different circuits reach clashing conclusions. The one most likely to decide against same-sex marriage, many experts say, is the Fifth Circuit, which will decide the Texas appeal. That circuit includes Mississippi and Louisiana, and the court is viewed as largely made up of conservative judges.

[M]ore than 50 challenges to marriage limits are working their way through lower federal courts and state courts. In the next three months, federal district courts will hear challenges in Idaho, Oregon and Pennsylvania, said Gary Buseck, legal director of Gay and Lesbian Advocates and Defenders. 

If, despite recent signs, the Supreme Court finds no constitutional right to same-sex marriage, that could block such marriages in states like Utah and Virginia, where laws were overturned by federal courts. But it would not turn back the clock in the 17 states that adopted same-sex marriage on their own through legislation, ballot questions or state court decisions.