Culture Politics

What happens next in the 20 states that still ban gay marriage?

Video courtesy of USA Today
WASHINGTON (RNS) The Supreme Court’s decision to sit out the legal battle over same-sex marriage will — for now, at least — 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 in the end.

The court said Monday (Oct. 6) 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.

The court’s decision leaves unchanged 20 state laws blocking same-sex unions. Each is already under legal attack, facing challenges in state or federal court, and sometimes both. Challenges to marriage bans already have reached a handful of state appeals courts and the federal appeals courts for the 5th, 6th, 9th and 11th circuits.

Some of those judges had been waiting to see what the Supreme Court would do. The court’s instruction Monday was: Proceed.

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.”

No federal appeals court has yet upheld a state law prohibiting same-sex unions. But judges on a 6th Circuit panel hearing a challenge to four state laws earlier this year expressed skepticism that the Constitution requires states to recognize those marriages. And two of the lawsuits are now in front of the conservative judges of the 5th Circuit. If either of those courts upholds a state ban, the justices might be faced with a marriage case that would be harder to sidestep.

And that might be the long-term upshot of Monday’s decision.

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, Yale law professor William Eskridge said. If they do, he said, the court would have to do more than simply prohibit some couples from marrying; it would have to invalidate marriages that have already taken place. “It will become very hard for the Supreme Court to take that back,” Eskridge said.

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

5TH CIRCUIT (New Orleans)

Louisiana: A federal judge in New Orleans 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 5th 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.

Mississippi: A state court judge last year refused to divorce a lesbian couple, who had been married in California, because Mississippi did not recognize their marriage.

Mark Phariss and Vic Holmes (wearing dark blue shirt), of Plano, Texas, relax on a hammock while they enjoy a Saturday at their lake house in Gun Barrel City, Texas on May 31, 2014.  Phariss and Holmes are plaintiffs in the main Texas lawsuit seeking same-sex marriage rights. Photo by Mei-Chun Jau, courtesy of USA Today

Mark Phariss and Vic Holmes (wearing dark blue shirt), of Plano, Texas, relax on a hammock while they enjoy a Saturday at their lake house in Gun Barrel City, Texas on May 31, 2014. Phariss and Holmes are plaintiffs in the main Texas lawsuit seeking same-sex marriage rights. Photo by Mei-Chun Jau, courtesy of USA Today

Texas: A federal judge invalidated Texas’ ban in February. The state appealed that decision to the 5th Circuit. The plaintiffs in that case asked the appeals court to speed up the case on Monday, saying they wanted to have it resolved — and be married — before their second child is born. Texas indicated it would oppose speeding up the appeal.

6TH CIRCUIT (Cincinnati) 

Three appeals court judges heard arguments in August on challenges to same-sex marriage bans in all four states covered by the 6th Circuit. Unlike in other circuits, at least two of those judges expressed some skepticism that the Constitution requires states to recognize same-sex marriages. Monday’s 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.

Kentucky: A federal district court judge struck down Kentucky’s ban in July. The 6th Circuit is expected to decide the state’s appeal later this year.

Michigan: A federal district court judge invalidated Michigan’s ban in March. The 6th Circuit is expected to decide the state’s appeal later this year.

Participants gather during a rally celebrating the Supreme Court's gay marriage ruling at Ilus W. Davis Park in Kansas City, Mo. on Wednesday (June 26).  RNS photo by Sally Morrow

Participants gather during a rally celebrating the Supreme Court’s gay marriage ruling at Ilus W. Davis Park in Kansas City, Mo. on Wednesday (June 26). RNS photo by Sally Morrow

Ohio: A federal judge in Ohio struck down the state’s ban in April. The 6th Circuit is expected to decide the state’s appeal later this year.

Tennessee: A federal judge ordered Tennessee officials to recognize the marriages of three couples challenging that state’s ban. The 6th Circuit is expected to decide the case later this year. A state court judge in August rejected a separate challenge to the state’s law.

8TH CIRCUIT (St. Louis)

Arkansas: State officials have asked Arkansas’ 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.

Missouri: A state court judge last week overturned part of Missouri’s ban. The ruling requires Missouri officials to recognize same-sex marriages performed in other states. State officials said last week that they were reviewing the decision but had not immediately appealed. A separate federal lawsuit challenging the state’s ban is also pending. 

Nebraska: The state’s top court heard a challenge to Nebraska’s ban earlier this year but ultimately rejected the case for procedural reasons. A federal judge had ruled Nebraska’s ban unconstitutional in 2005, but the decision was quickly reversed by the 8th Circuit. That ruling is unlikely to dictate the outcome of new federal lawsuits in that circuit, however, if for no other reason than that the Supreme Court’s decision overturning part of the Defense of Marriage Act last year has so dramatically altered the legal landscape.

North Dakota: A challenge to the state’s ban by seven same-sex couples is pending in federal court.

South Dakota: Six same-sex couples filed a federal lawsuit in May seeking to overturn the state’s ban. That case is pending.

9TH CIRCUIT (San Francisco)

Alaska: A challenge to Alaska’s ban is pending in federal court, where it is scheduled to be heard later this month.

Arizona: At least two lawsuits challenging Arizona’s ban are pending in federal courts there.

Idaho: State officials have appealed a district court judge’s decision invalidating the state’s ban. The 9th Circuit heard arguments in the case in September and is expected to decide soon.

Montana: A federal lawsuit is pending challenging Montana’s ban.

Nevada: Three couples have appealed a district court judge’s decision upholding the state’s ban. The 9th Circuit heard arguments in September and is expected to decide the issue soon.

11TH CIRCUIT (Atlanta)

Alabama: At least three challenges are pending in federal court.

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 the state’s ban was unconstitutional in August. Florida officials have appealed that decision to the 11th Circuit.

Georgia: A lawsuit challenging Georgia’s ban is pending in federal court.

(Brad Heath writes for USA Today.)

MG END HEATH

 

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36 Comments

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  • Scotus has effectively said there is no constitutional right for two people of the same sex to be in a union called marriage.

  • Frank, I think you are confused. The SCOTUS has effectively said that they side with all of the circuit courts rulings thus far insisting that a ban against same sex marriage is not constitutional and that LGBTQ people have a constitutional right to marriage. Had the SCOTUS disagreed, they would have taken up one of the cases.

  • No I am not confused. If Scotus thought for one second constitutional rights were being violated they would have ruled long ago. What’s done can be undone.

  • Frank gets confused easily. What will happen is the next 20 states already have legal challenges in motion.

    The Federal Appeals Court has been consistent on the issue against gay marriage bans.

    If they aren’t then, appeal to SCOTUS is inevitable (because the federal court system hates regional differences in civil liberties). Should it go to SCOTUS expect 5-4 in favor of marriage equality. The conservative wing of the Supreme Court knows they will lose on the subject. So they punted.

  • And in 50 years when the reality that this misguided social experiment has failed it will start being reversed.

  • You finally figured out what was going on. This was after making a fool of yourself for the last few hours.

    And no. In 50 years fundamentalist revisionists are going to claim the liberal churches supporting marriage equality as an example of how Christianity works towards civil liberties. Just like they do now concerning the work of Dr. King and company. Forgetting how your brand of Christianity was more likely to be lynching people and burning crosses.

  • At issue before the Ninth Circuit are five states in the circuit that do not have marriage equality ( http://www.slowlyboiledfrog.com/2014/10/ninth-circuit-alaska-arizona-idaho.html ). Those are Alaska, Arizona, Idaho, Montana, and Nevada. Those additional five states are a near certainty leaving only 15 marriage discrimination states.

    As for Frank, at least six justices agreed not to hear these cases (only four are required for cert). They could have kept these in the pipeline which would leave the stays in place. They did not do that. The Court has effectively ruled that same-sex marriage is the law of the land.

  • Oh Larry. Reading comprehension is not your strength.

    One thing I know for sure if you have it your time and intellect into a position we know it wrong.

    Neither of us will probably be alive but you will see a reversal trend when the real damage present itself and there is nothing you can do to stop it.

    Scotus affirms their is no constitutional right for two people of the same sex to be in a union called marriage.

  • I stand corrected. You have no clue. Even if you won a lottery you could not buy a clue.

    “Scotus affirms their is no constitutional right for two people of the same sex to be in a union called marriage.”

    NO THEY DIDN’T. Where did you get this fiction from?

    You certainly didn’t read it from the article or any news story on the subject. They affirmed that several state level bans on gay marriage were unconstitutional.

    At this point there is nothing left to do but belittle your intelligence. There is nothing to discuss with you.

  • So… actually what refusing to hear a case means is that the Supreme Court effectively agrees with the lower court that had ruled on the matter. If they wished to rebuke the claim of the lower courts (the claim being that bans on gay marriage were unconstitutional) then it would’ve needed to take the case and issue the ruling. SCOTUS refusing to hear a case is what they do when they think that the lower courts have effectively solved the situation.

    It’s ONLY when they think that either the lower courts got something wrong, or there was a possibility that the lower courts got something wrong, that they actually hear a case.

  • Poor, poor Frank, still believing the lies he hears from anti-gay Hate Cults.

    We know why Frank is unable to accept the facts. Psychologists report that the most commonly observed symptom of the mental disorder homophobia is cognitive dissonance, an inability of those so afflicted to accept documentation that contradicts their deep-seated phobia and hatred of LGBT Americans.

  • Sorry, Frank, the 9th Circuit ruled today against the anti-gay Hate Votes in Idaho and Nevada. Their ruling means just what Mr. Hart says.

    Please seek help for your cognitive dissonance, Frank.

  • Poor Larry can’t see the writing in the wall that Scotus affirms there is no constitutional right for people of the same sex to be in a union called marriage.

  • Frank, if it were the case, SCOTUS would not have punted. They would have made an effort to overturn the various appellate decisions and heard the cases. Instead they kept the decisions. Made them good law.
    When an appeal is declined by the highest court, the lower court rulings stay in place.

    Kennedy is a stickler for procedure. He is forcing Idaho to support its case or go away.

  • Frank, I am curious to know what evidence of failure you expect will occur over the next 50 years that will show how the “social experience” was in fact “misguided?”

  • What happens next in the 20 states that still ban gay marriage?

    I send them a thumbs up letter .. WHICH WILL MEAN A LOT TO ME.. but not much to them since im like the rest of you answering this , just a no body..

  • I don’t think any one has a grasp on politicians like I do..
    So I will explain how it works.. if you Got friends with
    money,, You tell the people how its going to be and if
    they don’t like it ,,, Their probably is plenty of the other
    400 million people in the US that don’t know what you said ,,.
    That will gladly get you elected before your buddy’s run out of money covering up what you said ,.
    And some how after the election not only your buddy’s have plenty of money again but, you have New found wealth..
    And not only you can’t figure out how that happened but no body else can figure out how you got all that money
    either..
    I hear its an amazing experience ..the whole process..

  • Wrong again, Frank. Justice Kennedy gave Nevada the go-ahead to establish marriage equality today, the 7th US State to establish marriage equality so far this week.

  • And Kennedy told Nevada today to start marriage equality.

    We know why anti-gays are unable to accept the facts in this matter. Psychologists report that the most commonly observed symptom of the mental disorder homophobia is cognitive dissonance, an inability of those so afflicted to accept documentation that contradicts their deep-seated phobia and hatred of LGBT Americans.

  • rob, if you are saying you want to violate the United States Constitution by hoping some states will continue to violate the Constitution, then you have made an accurate assessment of yourself.

  • I’m sorry you’re so ignorant about the United States Constitution and the Proper Rule Of Law written therein, rob, but when you get to grade school civics, you will learn how wrong you are. As we can all see, the Proper Rule Of Law is working to defeat the 32 unconstitutional, disloyal anti-gay Hate Votes. Seven of them have been destroyed this week so far already.

  • @ carrotcakeman

    I would rather violate it than have it violate me..

    better yet I will just interpret to my advantage like you do..

  • @ CARROTCAKEMAN

    why would you want the rule of law to act proper if it did there would not be a bunch of homosexual running the place,,

  • my solution

    Just ban all homosexual acts that are not in the homes of supreme court Judges .. since they seem to agree with it ,, let them do it there..

  • To make this arrangement work well .. The supreme court judges must always have there home open to them at all times be pleasant an helpful .. And they get use of the judges cars and credit cards ..
    in case they want a snicker doodle snack in the middle of the night or something .. They also have free use of the judges tv and remote .
    they can enjoy the stuff in his refrigerator and freezer ..
    use his master bedroom and bathrooms .. and if they cant afford the airplane trip and taxi to his house The other liberal judges of the united states must help out with money and use of their credit cards.. also ..to make this
    work realy super well .. Their employer’s must give them paid time off, when ever they wan to go to the judges houses and of course the judges will show signs of happily signing the vouchers that they were there…And be pleasant and cheerful to them at all times..
    they also have a right to call the supreme court judges papa or momma
    to make them feel more comfortable in the judges homes..
    .

  • I know. I mean there are several states and countries which had marriage equality for quite some time.

    If the opponents of it had any kind of merit to their arguments they would be able to point out real life examples of problems and failures caused by it. But they don’t. They can’t. They dishonestly treat gay marriage as a theoretical construct even though it exists in actuality for many.

  • Scotus affirms that there is no conditional right for two people of the same sex to be in an Union called marriage. No getting around that.

    Try again.

  • The further destruction of the family. More and more kids abused by not having a mother and father.

    This trend will reverse itself over time. No doubt about it.

  • The Magicians are at work; how clever they are! I marvel how they hold out with one hand the subject of gay marriage; the crowd awes in wonderment and disbelief; all eyes are riveted as the larger con game robs you of your freedom with the other hand. Those who we thought we elected were chosen by others. Sad to say that those arguing for crumbs are manipulated by those controlling the strings of judges and bureaucrats, cleverly fronted to control the masses.

  • Frank, you are beyond ridiculous, as are the morons at the AFA who came up with that line. It doesn’t even make the slightest bit of sense. Are the leaders of the anti-gay movement brain damaged? I mean it takes a special kind of lack of thinking to come up with that one.

    Children with gay parents are doing just fine. Better than the single parents or foster homes you would want them in. Marriage equality has strengthened those families by taking out arbitrary legal barriers to the ability to act as parents.

    The trend against religious bigotry against gays will reverse itself over time because every sane, reasonable person knows that fight is already lost by your type.

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