For weeks now, those involved in the debate over gay marriage in Louisiana have been waiting for U.S. District Judge Martin Feldman to decide.
Arguments before the judge in a lawsuit challenging Louisiana’s ban on same-sex marriage took place more than a month ago. Feldman denied a request for further courtroom debate back in July, and both sides are expecting a ruling from him any day.
And yet, even as anticipation builds, courtroom decisions elsewhere around the country appear to be quickly overtaking the Louisiana case, building toward a U.S. Supreme Court showdown that could make any further skirmishing in district courts irrelevant.
Events on Thursday in one of the Utah same-sex marriage lawsuits drove home the growing likelihood of a Supreme Court review. In that case, Utah officials hoping to preserve that state’s same-sex marriage ban already have lost in district court and at the 6th U.S. Circuit Court of Appeals in Denver. Now they are appealing to the Supreme Court, but, in an unusual move, the winning side also is asking for the high court to review the case.
It’s a sign both that gay rights advocates are feeling hopeful they can win at the highest level and that they expect the Supreme Court to step in relatively soon anyway, perhaps during the court’s next term.
“We do feel confident, and a lot of people feel the wind is at our sails,” said Chris Otten, chairman-elect of the Forum for Equality Louisiana, though he added, “There is, of course, always the risk that one side may be overplaying its hand. Who knows?”
Otten also stressed that the Forum for Equality, which is a party to the Louisiana lawsuit, will be pressing ahead with its own case regardless of what happens elsewhere. There are still certain scenarios under which the Supreme Court may avoid taking up the issue, however unlikely they’ve become.
For one thing, all of the federal appeals courts could end up ruling in favor of same-sex marriage, leaving the Supreme Court with no need to resolve conflicting decisions. So far, there’s been no ruling from the 5th Circuit, which hears cases from Louisiana, Texas and Mississippi, so one of the local cases will have to proceed or Louisiana’s ban will remain in place.
Also, the Supreme Court could simply decide to give the issue more time — perhaps even a few years — to play out, allowing more circuit courts to come down one way or the other.
But observers on both sides of the issue see that as increasingly unlikely because of the complications it could bring. Gay and lesbian couples already are running into thorny legal questions, some of them having wed in states where same-sex marriage is legal then moved to states where it is not.
Then there is the possibility a lower court will strike down a same-sex marriage ban, only to have its decision overturned months or years later, leaving couples who marry in the interim in legal limbo.
“It creates a really untenable situation,” said Kenneth Upton, a lawyer for the LGBT rights group Lambda Legal. “I don’t see the Supreme Court doing that.”
Here, even those defending bans on same-sex marriage agree. In their brief to the Supreme Court, officials from Utah argued, “A vast cloud covers this entire area of the law, and only this court can lift it.”
There are signs the high court agrees with that view. In an interview recently with The Associated Press, Justice Ruth Bader Ginsburg predicted the court would not try to dodge the issue and may take it up as soon as its next term, with a ruling likely by next summer.
All of this could affect the Louisiana case, which began as a dispute over whether the state should have to recognize legal same-sex marriages performed in other states and has grown to encompass gay couples’ demand for the right to wed in Louisiana as well.
The Supreme Court could end up ruling before the Louisiana case is resolved at the 5th Circuit. The appeals court then would simply recognize that the Supreme Court has decided the issue.
Legal experts say it would be difficult for either side to keep fighting after a Supreme Court ruling, even if the justices technically address a same-sex marriage ban from another state. That’s because all of the state bans are worded similarly, and the constitutional issues involved are more or less identical.
In fact, the 5th Circuit could decide to put the Louisiana case on hold and wait for the Supreme Court to rule.
Kyle Duncan, the attorney arguing for Louisiana’s ban, said, “I think the open question now is how long the Supreme Court is going to take.”