The plaintiffs in Louisiana’s lawsuit over same-sex marriage are hoping to leapfrog the 5th U.S. Circuit Court of Appeals, where the case is scheduled to be heard in January, and go directly to the U.S. Supreme Court.
The Forum for Equality Louisiana and other parties trying to overturn Louisiana’s ban on same-sex marriage filed a request with the high court on Thursday. They’re asking that their lawsuit be taken up with a group of cases recently decided by the 6th U.S. Circuit Court of Appeals in Cincinnati.
In that case, the 6th Circuit upheld same-sex marriage bans in Kentucky, Michigan, Ohio and Tennessee. The decision is widely expected to trigger a Supreme Court review in the coming months because it directly contradicts rulings from four other federal appeals courts that have struck down bans in other states as unconstitutional.
Chris Otten, the Forum for Equality’s chairman-elect, acknowledged that petitions to skip over federal appeals courts are rarely granted, perhaps once in a decade.
But he insisted that Louisiana’s case meets the court’s criteria, arguing that irreparable harm would follow from any delay in resolving the case and that U.S. District Judge Martin Feldman’s ruling in favor of Louisiana’s ban is out of step with a growing consensus among federal judges.
“This is the kind of case this rule was designed for,” Otten said.
From a practical standpoint, the Louisiana case would also offer the Supreme Court a relatively straightforward way of dealing with the two major issues involved. Most lawsuits pending in federal courts deal with one of two questions: whether same-sex couples can obtain a marriage license in a particular state, or whether same-sex couples married in states where such unions are legal can have those marriages recognized in states that maintain a ban.
The Louisiana case, which includes seven couples, encompasses both questions. And Feldman’s ruling dealt with each of them, finding that Louisiana is within its rights to define marriage as the state’s voters see fit.
In doing so, Feldman became the first federal judge to rule against gay marriage proponents since last year’s Supreme Court decision in U.S. v. Windsor. That decision struck down a portion of the federal Defense of Marriage Act that blocked married same-sex couples from receiving the same federal benefits that traditional couples do.
In the dozens of lawsuits that have been filed since Windsor, almost all federal judges have ruled that singling out same-sex couples for disparate treatment amounts to a violation of their constitutional right to equal protection under the law.
Feldman, along with a pair of judges on the 6th Circuit bench, interpreted the Windsor decision differently, seeing Justice Anthony Kennedy’s majority opinion as upholding the idea that a state’s voters — rather than the federal government or the courts — should decide the issue of gay marriage for themselves.
The Forum for Equality and Lambda Legal, a national advocacy group that has joined the case, assailed that reasoning in asking the Supreme Court to take up their lawsuit, calling it a “time-warped reading of the Constitution.”
“We have seen a blizzard of well-reasoned rulings in recent months holding similarly discriminatory bans unconstitutional,” said Kenneth Upton, Lambda’s senior legal counsel.
Kyle Duncan, the lawyer hired by Attorney General Buddy Caldwell to defend Louisiana’s ban, declined to say exactly how the state will respond to the plaintiffs’ request. But he added, “Our view is that whichever court wants to take up this issue, great.”
Feldman’s ruling came as an important first, snapping an unbroken string of victories for same-sex marriage proponents. But it has been mainly a guessing game as to whether Louisiana’s case would make it to the high court or be overtaken by cases elsewhere.
The Supreme Court surprised many observers last month by simply letting stand decisions from three federal appeals courts that had struck down same-sex marriage bans in five different states.
The court’s decision to pass on those rulings temporarily put the 5th Circuit in the spotlight, because it could have been the first federal appeals court to uphold a ban and cause a split that would force the Supreme Court’s hand.
Then earlier this month, the 6th Circuit decision came down and put cases from Kentucky, Michigan, Ohio and Tennessee in line to play the decisive role.