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Supreme Court kicks same-sex marriage back to lower courts

By Brad Heath/USA Today
On October 20, 2014

The Supreme Court decided not to take on the marriage equality cases and sent them back to the lower courts.

(RNS) – The Supreme Court’s decision to sit out the legal battle over same-sex marriage will leave the future of laws prohibiting gays and lesbians from marrying in the hands of lower state and federal court judges. But it also almost certainly means the couples challenging those laws are more likely to win.

On October 6, the court said that it would not hear appeals from five states whose same-sex marriage bans had been invalidated by lower federal courts. The decision, issued without explanation, will likely lead to recognition of gay marriages in 11 more states. It also allows an avalanche of legal challenges to the remaining bans to keep going forward in state and federal courts, where gay and lesbian couples have overwhelmingly prevailed.

Technically, the Supreme Court’s decision doesn’t dictate how those lower court cases should come out. But it sends a signal that’s hard for lower court judges to ignore.

“It’s inevitable that judges on lower courts will be thinking about what this means,” said University of Michigan law Professor Sam Bagenstos. “Lower court judges hate to be reversed. They’re always trying to predict what the Supreme Court will do, and I’d be shocked if they aren’t taking this into account.”

According to Yale law professor William Eskridge, by letting gay and lesbian marriages go forward in 11 other states, the justices almost certainly made it harder to reverse course in the future. If they do, said Eskridge, the court would have to do more than simply prohibit some couples from marrying. Reversal would mean having to invalidate marriages that have already taken place, which would be difficult for the Supreme Court to do.

Here’s where some legal challenges stand, broken down by circuit: 

Fifth Circuit: In New Orleans, a federal judge upheld the state’s ban earlier this year. The decision was one of only a handful of victories for states since the Supreme Court struck down part of the Defense of Marriage Act in 2013. The plaintiffs in that case appealed to the Fifth Circuit, which will hear the case later this year. Separately, a state judge ruled last month that Louisiana’s ban is unconstitutional. State officials are appealing that decision to Louisiana’s Supreme Court.

Sixth Circuit: Three appeals court judges in Cincinnati heard arguments in August on challenges to same-sex marriage bans in all four states covered by the Sixth Circuit. Unlike in other circuits, at least two of those judges expressed some skepticism that the Constitution requires states to recognize same-sex marriages. The October 6, decision does not technically dictate the outcome of those cases, and because they heard the case two months ago, the judges may have already made up their minds. They are expected to rule by the end of the year.

Eighth Circuit: State officials in Arkansas have asked the top court to overturn a state court judge’s decision invalidating a ban there. The state appeals court has blocked the decision from taking effect until it can hear the case. 

Ninth Circuit: Three couples in Nevada have appealed a district court judge’s decision upholding the state’s ban. The Ninth Circuit heard arguments in September and is expected to decide the issue soon.

11th Circuit: In Florida, a state appeals court is set to decide the future of Florida’s ban, which was invalidated by a lower state court judge. Attorney General Pam Bondi had asked the appeals court to delay hearing the case until after the Supreme Court had weighed in. Now that it has, the case can go forward. Separately, a federal judge in Tallahassee ruled that the state’s ban was unconstitutional in August. Florida officials have appealed that decision to the 11th Circuit.

Brad Heath writes for USA Today.

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