When the Supreme Court last week declined to hear appeals from five states seeking to prohibit gay marriage, it set off nationwide conversations — debate and speculation on what the justices on the high court were thinking, why they sidestepped the issue for now and whether their actions so far signal that, eventually, same-sex marriage will be legal nationwide.
In Louisiana, those conversations also center on the role that the state — and the New Orleans-based 5th U.S. Circuit Court of Appeals — might have in the eventual outcome.
The 5th Circuit, which has jurisdiction over federal courts in Mississippi, Louisiana and Texas, is one of a handful of circuits that have not yet ruled on the issue since the Supreme Court ruled last year that the federal government had to recognize marriages performed in states where gay marriage is legal.
With the high court unexpectedly punting the larger issue of state marriage bans, scrutiny on the circuit courts grew.
“Every time a court agrees with the prior decisions, that leaves fewer and fewer courts to disagree and, so, the focus becomes more intense,” said Kenneth Upton, senior counsel for Lambda Legal. The nonprofit gay rights group announced last week that it would join Louisiana plaintiffs seeking to overturn the state’s gay marriage ban. He was interviewed at midweek. At that point, he singled out the 5th, 6th, 8th and 11th circuits as those yet to weigh in.
Pending before the 5th Circuit are cases from Louisiana and Texas that will be heard in the coming months by the same three-judge panel, most likely on the same day.
In the Texas case, a U.S. district judge declared the state’s gay marriage ban unconstitutional in February and issued a preliminary injunction. The ban stands, however, pending the appeal.
The Louisiana case consolidates lawsuits filed by the Forum for Equality Louisiana and same-sex couples who either want to get married in the state or want the state to legally recognize their marriages performed in other jurisdictions where same-sex marriage is legal.
Bucking a national trend, U.S. District Judge Martin Feldman ruled in early September in the Louisiana case that the state can continue to outlaw same-sex marriages within the state and refuse to recognize such unions that are legally performed elsewhere. Feldman, agreeing with attorneys for Louisiana, said individual states retain the right to define marriage. His ruling broke a string of 20 court victories around the country for gay marriage advocates, a string that resumed soon afterward.
Feldman clearly knew his wouldn’t be the last word. “Clearly, many other courts will have an opportunity to take up the issue of same-sex marriage; courts of appeals and, at some point, the U.S. Supreme Court,” he wrote.
As events last week unfolded, there was growing speculation that the Supreme Court might never take its opportunity to hear arguments — if all the other appeals courts agree with those that have, in effect, made gay marriage legal in roughly 30 states.
“I think the culture of the Supreme Court is, they don’t step in when they don’t have to,” Upton said.
Any break from the trend would mean a split among the circuits and the likelihood that the high court would have to settle the issue.
Still, Upton and Kyle Duncan, a lead attorney for Louisiana’s efforts to preserve its gay marriage ban, agree the upcoming 5th Circuit arguments will be important, even if, by the time they are held another circuit has broken the unanimity by upholding a gay marriage ban.
The geographical scope and the experience of the judges on the New Orleans-based court mean their ruling will have weight, Duncan said. “It’s a big circuit. It’s got some important judges on it who have been around a long time.”
Kevin McGill is an Associated Press reporter in New Orleans.