by Megan Smith
With the new year comes new momentum in the fight for marriage equality in the Lone Star State. The U.S. Fifth Circuit Court of Appeals has scheduled oral arguments in the Texas marriage equality case—known as De Leon v. Perry—for January 9, 2015.
In February 2014, U.S. District Judge Orlando Garcia of San Antonio ruled Texas’s 2005 constitutional amendment banning marriage equality unconstitutional because it violated gay couples’ 14th Amendment rights to due process and equal protection. However, the decision was stayed pending appeal to the Fifth Circuit Court by now-governor-elect Greg Abbott.
Lawyers on both sides will present their cases before a three-judge panel, the names of which will be announced the week before oral arguments commence.
In October, Cleopatra De Leon and Nicole Dimetman—one of the two gay couples challenging Texas’s ban on same-sex marriage—requested that the Fifth Circuit Court fast-track its review of their case, as Dimetman is currently pregnant with the couple’s second child. The pair argued that, under current law, the state would only automatically recognize Dimetman as the child’s parent. In order for De Leon to be seen as the child’s second parent in the eyes of the state, the couple would have to go through a lengthy, expensive adoption process, which they were required to do for their first child. They hoped to avoid this burden with a win in the Fifth Circuit before the child’s March 15 due date. “The concern is if something were to happen to Nicole after the baby is born, but before an adoption, then Cleo would not have parental rights,” Barry Chasnoff, one of the attorneys for the two couples, said. The court agreed to expedite the case, resulting in the January argument date.
However, January was a little later than De Leon, Dimetman, and the second gay couple challenging the ban—Mark Phariss and Vic Holmes—had hoped. “Vic and I are extremely disappointed in the Fifth Circuit’s scheduling order,” read a statement from Phariss. “It unnecessarily delays the time when Vic and I and the hundreds of thousands of other gay and lesbian couples in Texas can marry. But love will ultimately prevail, and we look forward to that day.”
Although LGBT-rights advocates remain optimistic, the New Orleans-based Fifth Circuit Court is largely considered to be one of the most conservative appellate courts in the nation, calling into question the likelihood of a ruling in favor of marriage equality.
In early October, the U.S. Supreme Court declined to review several marriage equality cases, letting the rulings by lower circuit courts stand, and, in turn, bringing marriage equality to Virginia, Oklahoma, Utah, Wisconsin, and Indiana. Several more states followed, increasing the total number of U.S. states where marriage equality is legal from 19 to the current 35.
While speaking with a Minnesota audience in September, U.S. Supreme Court Justice Ruth Bader Ginsburg hinted that the court would pass on ruling on marriage equality for the time being. She explained that since all of the circuit courts up to that point—the Fourth, Seventh, Ninth, and Tenth Circuits—had all ruled in favor of marriage equality, there was “no need for us to rush.” She did, however, advise the audience to watch how the Sixth Circuit Court would rule. “Now if that court should disagree with the others, then there will be some urgency in the court taking the case,” she said.
And the Sixth Circuit Court did just that, exactly one month after the Supreme Court declined to review the marriage equality cases. In a 2–1 vote, the court became the first federal appeals court to side with marriage discrimination and uphold the bans on marriage equality in Michigan, Ohio, Kentucky, and Tennessee. “When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers,” wrote Sixth Circuit Court Judge Jeffrey Sutton. “Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.”
Because this October ruling has created a “circuit split”—when two or more federal appeals courts disagree on the same question of law—many are now turning their attention back to the U.S. Supreme Court for further action. During an NPR panel a few days after the Sixth Circuit Court’s ruling, Supreme Court Justice Stephen Breyer implied that despite the high court’s decision not to take up appeals on the issue earlier this session, it had not yet issued its final say on the issue of marriage equality.
Attorneys representing same-sex couples in Michigan, Ohio, Kentucky, and Tennessee have all since filed petitions with the U.S. Supreme Court. The court is expected to decide by mid-January whether or not to hear the case in time for a decision in June 2015. Otherwise, the case will be delayed until the court’s following term, with a decision unlikely until June 2016.
“This is the circuit split that will almost surely produce a decision from the Supreme Court, and sooner rather than later,” Dale Carpenter, a professor of constitutional law at the University of Minnesota, told the New York Times. “It’s entirely possible that we could have oral arguments in coming months and a Supreme Court decision by next summer.”