Litigation Round-Up: Where marriage cases stand in the federal appellate courts
April 14, 2014
The winning streak for the freedom to marry continued this week as a federal judge declared that the state of Ohio must respect the marriages of same-sex couples legally performed in other states.
The landmark ruling today was the eleventh federal court ruling in favor of marriage for same-sex couples (see chart, below). Since the United States Supreme Court ruling in Windsor v. United States ten months ago, not one federal judge has ruled against the freedom to marry.
In total, there are more than 60 lawsuits seeking the freedom to marry or respect for same-sex couples' marriages working their way through the system in 30 states or territories. Keeping track of what's going on in state, federal, and trial courts can be challenging, as they move quickly. That's why Freedom to Marry has been keeping tabs on litigation with our Marriage Litigation resource to provide a comprehensive overview at all of the marriage-related legal cases already underway. Special thanks to Kathleen Perrin at Equality Case Files for always being thorough in posting essential documents from the courts.
The national strategy has always been to win a final victory in the Supreme Court; the key to encouraging the Court to rule in favor of the freedom to marry nationwide is to work the tracks of the Roadmap to Victory: growing public support, winning marriage in more states, and ending federal discrimination. By the time we return to the Supreme Court with a marriage case, we must create the climate that maximizes our chances at a final victory. Freedom to Marry applauds the work of the legal organizations behind these marriage lawsuits, and we are excited to continue making the case to win marriage nationwide.
After today's great victory in Ohio, it's a good time to check in on the state of marriage litigation across the country. In nine states, marriage litigation is currently pending at the federal appellate level in five different Circuit Courts. Here are the basics in each:
The 10th Circuit:
Last Thursday, oral arguments were considered by the 10th Circuit Court of Appeals in Kitchen v. Herbert, the Utah lawsuit in which a federal judge struck down the state's ban on marriage for same-sex couples. This week, on Thursday in Denver, the same three-judge panel at the 10th Circuit will hear arguments in Oklahoma's Bishop v. Smith, in which a federal judge also struck down the Oklahoma ban on marriage for same-sex couples. Last month, Freedom to Marry worked as a leading partner on two public education campaigns in these states: We launched Utah Unites for Marriage, a coalition of state and national partners in Utah, as well as Freedom Oklahoma with The Equality Network. These campaigns seek to amplify the conversation about why marriage matters in Utah, Oklahoma, across the 10th Circuit, and throughout the country – all part of our strategy, which has long called for creating the climate that maximizes the chances of winning in court. For more information about marriage litigation at the 10th Circuit, click here.
The 6th Circuit:
All four states in the 6th Circuit currently have litigation pending at the appellate level. Ohio's Obergefell v. Himes - in which a judge ruled that Ohio must respect marriages between same-sex couples for the purpose of listing a surviving spouse on a death certificate - began briefing on April 10, with the plaintiffs' reply brief due May 13. In Michigan, briefing in DeBoer v. Snyder - in which a judge struck down Michigan's constitutional amendment restricting same-sex couples from marriage - begins on May 7, with the plaintiffs' reply brief due June 9. The other two cases - Kentucky's Bourke v. Beshear - in which a judge declared that Kentucky must respect the marriages of same-sex couples legally performed out of state - and in Tennessee's Tanco v. Haslam - which saw action when a judge granted a temporary preliminary injunction respecting the marriages of three plaintiff couples as their case continues through court - are on the same briefing schedule as Michigan.
The 9th Circuit:
Oral arguments have not yet been set in Sevcik v. Sandoval, a Nevada case that seeks to overturn anti-marriage laws across the state. The Nevada Attorney General and Governor have stopped defending the state's marriage ban. As the case waits to be scheduled, Freedom Nevada, a coalition of state and national partners, continues to make the case that Nevada is ready for the freedom to marry.
The 4th Circuit:
Oral arguments in Bostic v. Schaefer, the federal court challenge that brought down Virginia's constitutional amendment restricting marriage to different-sex couples in February 2014, will be heard by the 4th Circuit Court of Appeals on May 13, 2014. Last week, the plaintiffs filed their reply brief in the appeal - and they were joined later in a friend-of-the-court brief by Virginia Attorney General Mark Herring.
The 5th Circuit:
The Texas case DeLeon v. Perry, which received a ruling last month declaring that Texas laws banning same-sex couples from marrying are unconstitutional, has yet to receive a briefing schedule or time frame for oral arguments. You can read an interview with one of the plaintiff couples, Mark and Vic, here.
Other Federal Wins:
- ILLINOIS: A big win from February in Illinois' Lee v. Orr moved up the start date of the freedom to marry in some counties, and the victory has not been appealed. In fact, the Illinois Attorney General instructed all counties to follow the order, which was limited to Cook County. Not all county clerks have complied, however, saying that they will wait until the freedom to marry takes effect in June 2014.
- INDIANA: Last Thursday, in Baskin v. Bogan, a federal judge ruled that the state of Indiana must respect the marriage of a same-sex couple from Munster, Indiana - Amy Sandler and Niki Quasney. One of the spouses, Niki, was diagnosed in 2009 with ovarian cancer and is terminally ill. The judge issued an emergency temporary restraining order declaring that Indiana must respect their marriage. The order will now last for 28 days, and then a preliminary injunction hearing will be held to determine further action. The ruling has not been appealed.
- OHIO: Today's ruling in Henry v. Himes has been stayed and has not yet been appealed. However, the state of Ohio is already in the middle of an appeal in a previous, more limited marriage ruling, and it is likely they will appeal this victory, too.
Looking Ahead:
Nearly 30 other cases are also now being considered in federal court. Most pressing is Geiger v. Kitzhaber in Oregon, where same-sex couples will argue against anti-marriage laws in Oregon on April 23. Soon after, on May 28, oral arguments will be heard in Palladino v. Corbett, which seeks respect for a couple's out-of-state marriage in Pennsylvania. On June 9, a trial is scheduled in Whitewood v. Wolf seeking the freedom to marry and respect for out-of-state marriages in Pennsylvania, and on June 25, oral arguments are scheduled in Louisiana's federal challenge Robicheaux v. Caldwell. Briefing begins April 21 in a federal court challenge in Arizona, and the last date on the calendar for federal lawsuits is in Wisconsin's Wolf v. Walker, where a judge has scheduled a trial on the freedom to marry for August 25.
Federal lawsuits are also pending in Alabama, Arkansas, Arizona, Florida, Idaho, Indiana, North Carolina, Puerto Rico, South Carolina, and West Virginia.
In state court, nearly 20 cases are pending, with a hearing scheduled in an Arkansas challenge for later this week, on April 17. State challengse are also pending in Alabama, Colorado, Florida, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Pennsylvania, South Carolina, Texas and Wyoming.