Q&A: What’s Happening with Marriage in the Courts?

UPDATED 5/15 to reflect new rulings in Texas, Arkansas, and Idaho

It's been a busy year for the freedom to marry as hundreds of same-sex couples and their families in dozens of states have stood up and filed challenges to anti-marriage constitutional amendments. With 72 lawsuits pending in state and federal courts in 30 different states (plus Puerto Rico), and an unprecedented winning streak - 16 for 16 rulings in favor of the freedom to marry in state and federal court since Windsor - it's clear in every corner of the country that America is ready for the freedom to marry. 

As litigation continues to take vital steps toward our goal, a national victory in the Supreme Court, Freedom to Marry answers the sometimes-complicated questions about legal proceedings to help supporters understand what's next.

Here, Freedom to Marry founder and president Evan Wolfson describes the dynamic litigation landscape and explains how all Americans can do their part in creating the climate for these courts - including the U.S. Supreme Court - to rule in favor of marriage nationwide as soon as possible. 

Q: Last month, we saw the 10th Circuit Court of Appeals kick off a wave of federal appellate arguments in freedom to marry cases, and on May 13, the 4th Circuit Court of Appeals heard arguments in Virginia. Now that these arguments have concluded - and appeals courts in the 5th, 6th, 7th and 9th Circuits gear up to hear other marriage cases, what happens next, and how could one or more of these cases end up at the U.S. Supreme Court?

EVAN WOLFSON: Presumably, we will soon - meaning, in a matter of months - have rulings from one or more of the federal appellate courts. Then there's the possibility of further procedures as to whether the three-judge panels in those courts that will rule will then go to the broader, full panel of the entire circuit courts [a process called en banc review]. That could consume a few more months.

"It's possible that one of these cases will get to the Supreme Court sooner - potentially for decision by June 2015 - rather than later. In any case, the key to winning is to keep working the same Roadmap to Victory national strategy."- Evan Wolfson

When that gets resolved (either by bypassing that step or by having another set of arguments and further round of decisions), then whoever loses that ultimate appeals court ruling may ask the Supreme Court to hear the case. That's called "seeking cert." That stage then requires another few months of briefing and argument, with one side saying the Supreme Court should hear the case and the other side saying the Court should not hear the case. Then, it's up to the Supreme Court to decide whether it's going to take one of the cases or not. It takes only four of the nine justices to vote to hear a case.

We have reached the federal appellate level with 9 cases in the 4th, 5th, 6th, 7th, 9th, and 10th Circuits (see graphic below - click to enlargen), but there are many twists in the road still ahead for all of these cases and in all of these courts. No one knows which case coming out of which court will reach the Supreme Court, and whether - or when - the Supreme Court will take the next marriage case. Our goal, of course, is not just to reach the Supreme Court, but to win there.

Q: How do the United States' Circuit Courts of Appeals work? How could a ruling in, for example, the Utah marriage case affect the other states in the 10th Circuit (CO, KS, NM, OK, UT, WY)?

WOLFSON: The country is divided into several appellate circuits, and each circuit has a court of appeals, for example, the 6th Circuit or the 9th Circuit or the 10th Circuit. Each circuit is composed of several states, and the circuit court is the highest federal court within that circuit - although, of course, its decisions are subject to potential review by the Supreme Court. 

It's very possible that one or more of these circuit courts will rule within the next several months on one of the cases that are coming out of the so-far unanimous victories we've had at the lower level. The rulings could be broad or narrow, and could get caught up in a procedural point. But, if, as seems likely, one or more of the circuit courts affirms the kinds of rulings we've been getting so far out of the district court, we will likely see relatively broad rulings that apply to either respecting marriages no matter where people live or the outright freedom to marry itself, or both.

Depending on exactly what the court says, and unless there's some quirk or procedure that limits the reach of that ruling, many of these appellate rulings are likely to apply not just to the couple and not just to the case and not just to the state where the case came to the court from, but to the whole set of states that is in that circuit and would become the binding law for that circuit - the four or five or so states within that circuit. And such rulings would stand as the binding law until a case reaches the Supreme Court.

One other note: even with a broad ruling that applies to all couples in all states within a circuit, it is very possible there would be a stay (or a hold) put on the decision either by the appeals court or the Supreme Court during the time it takes to appeal to the full circuit court for “en banc review” and to seek Supreme Court review.

Q: We've had such a great winning streak for marriage since last June's Supreme Court decision in Windsor. What happens if marriage supporters lose one of these cases?

WOLFSON: As we've all celebrated in recent months, we have won every single court ruling on the freedom to marry and on respecting marriages and, more broadly, on ending marriage discrimination (see sidebar, right).

We now have 12 out of 12 lower court rulings in our favor in federal court, and I'm very hopeful that we're going to see very similarly strong results out of many, if not all, of the appellate arguments and rulings soon to come. But, of course, there's no guarantee.

It's always possible that we will lose one somewhere, at some point. That will be painful for the moment and for the people involved in that particular case, but in a way, it's also part of how constitutional litigation proceeds. One of the factors that makes it more likely than not that the Supreme Court will take a freedom to marry case sooner rather than later is to have a conflict between the circuit appellate courts.

Q: What happens if the Supreme Court does not take a marriage case this fall?

WOLFSON: Until the Supreme Court takes a case and hands down a national ruling that becomes the law across the country, the decisions of the appellate courts are the binding law of the states within that circuit. So it is certainly possible that we will see rulings in favor - or even, potentially, against the freedom to marry - that will then be the law within those several states, until the Supreme Court takes one or more of the cases and hands down a national ruling.

Note: a federal ruling against the freedom to marry would not mean that states cannot do the right thing; it would mean that the appeals court doesn’t think states have to do the right thing – until the Supreme Court says otherwise. 

A couple of months ago, Freedom to Marry put out a strategy update to help people understand where we are at this exciting moment in our movement, with so much dynamism on the litigation front and so much momentum in public opinion and in the states that creates the climate for success. The tagline of our strategy update was "1 Strategy, 2 Timelines."

We sketch out two potential timelines because it's possible that one of these cases will get to the Supreme Court sooner - potentially for decision by June 2015 - rather than later. On the other hand, that may not happen, there may be delays, the Supreme Court may let this percolate longer in the states, or we could even lose – in which case we’re on the somewhat longer timeline of 2016, 2017, or 2020, etc. In any case, we believe the freedom to marry is within our reach in a matter of years, not decades… and in any case, whether on the 2015 timeline or the somewhat later timeline, the key to winning is to keep working this same Freedom to Marry “Roadmap to Victory” national strategy that has always talked about the need to make the same strong case in the court of public opinion as our advocates are making in so many courts of law.

Q: What can marriage supporters do in the meantime to help make the case for marriage and arrive at a national ruling as soon as possible?

WOLFSON: We need to keep having those conversations that change hearts and minds, bringing more and more people onboard. We need to be telling our stories and doing work in all corners of the country, whether it be Utah, Oklahoma, Virginia, Texas, Kentucky - the states where so many of these cases are now coming out of - or in other parts of the country where we've won the freedom to marry but should be enlisting more business voices, more conservative voices, more Republican voices, and mobilizing younger people across the political spectrum.

"We need to help the courts get the country where the country is ready for the courts to get us: on the right side of history, with the freedom to marry for all." - Evan Wolfson

 It's very tempting to get caught up in trying to guess which case is going to go where when and how courts are going to rule and which one is going to get to the Supreme Court. But these are things that we can't control, and handwringing or prognosticating just take away from the work that will bring us closer to victory.

What we can control is that we do everything we can and not waste a minute in creating the climate that will maximize our chances of winning no matter which case gets there when. That's the best way to ensure that we achieve our goal of winning marriage nationwide and do so as soon as possible.

We need to continue sending the message that all of America is ready for the freedom to marry. That's the way we're going to win. It's too important to leave this to the lawyers alone. We need to help the courts get the country where the country is ready for the courts to get us: on the right side of history, with the freedom to marry for all.