The conclusion seems foregone, but SCOTUS’ timeline, other details remain uncertain



DAVID TAFFET  |  Staff Writer

When the U.S. Supreme Court accepted petitions from plaintiffs in marriage equality cases from four states, it laid out a timeline and limited discussion to two questions.

Unlike the 5th Circuit, which heard one hour of arguments on each of three cases from Mississippi, Louisiana and Texas, the Supreme Court has consolidated cases from Michigan, Ohio, Kentucky and Tennessee into one, then divided the hearing into two parts.

First, the court will hear 90 minutes of arguments on the question, “Does the 14th Amendment require a state to license a marriage between people of the same sex?” Then the court will hear one hour of arguments on the question, “Does the 14th Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?”

Lambda Legal Supervising Senior Staff Attorney Ken Upton said the two cases from Ohio only involved recognition, so that state’s attorneys and plaintiffs will only be involved in the second portion of the hearing. His organization was involved in one of the Ohio cases.

Despite what seems to be a limitation by the court to constitutional questions, Upton said he expects the states to argue their full range of excuses for refusing to treat gay and lesbian couples equally.

“I don’t think arguments will be very different” than the ones already heard across the country in trial and appellate court proceedings, Upton said.

However, the court did limit discussion to the 14th Amendment, so Upton said that eliminates discussion of the “full faith and credit” clause of the U.S. Constitution.

The 14th Amendment does ensure due process and equal protection by the states.

The Windsor decision, which declared part of the Defense of Marriage Act unconstitutional, didn’t address 14th Amendment issues. Instead, it based its decision on the 5th Amendment’s right of due process by the federal government.

Matt Pepping, attorney for the plaintiffs in the Texas marriage equality case that was heard by the 5th Circuit earlier this month, agrees.

“The issue will come down to due process and equal protection,” he said.

Pepping said as states have lost over and over again, their arguments have been winnowed down. He expects attorneys for the states will use the “responsible procreation argument.” That is, he said, the “last man standing” in terms of usable arguments against marriage equality, but it is an argument that ultimately fails.

“In 30-odd cases, they haven’t come up with any good arguments against marriage equality,” Pepping said.

Upton said he expects attorneys for the states to argue the right of a state to determine who can get married. Attorneys for the states will argue they have a “legitimate” interest, while attorneys arguing for marriage equality will insist they’d need a “compelling” interest to limit marriage rights.

The time line

Briefs from the petitioners — those that originally sued their states for marriage recognition — are due at the Supreme Court by 2 p.m. on Friday, Feb. 27. The states must respond by 2 p.m. on Friday, March 27 and reply briefs are due by 2 p.m. on Friday, April 17.

That doesn’t leave much more time for the case to be heard this session.

The court hasn’t set the date for the hearing but only hears arguments on Mondays, Tuesdays and Wednesday through April 29 this session.

Decisions are written and issued through the end of June. Often the court leaves its most controversial decisions for the last day on its calendar — June 29 this year.

The most likely scenario for a hearing and outcome, according to Upton, is the case will be heard the last week in April with a decision rendered the last week of June. Should the same five justices (or more) that ruled for Windsor also come down on the side of marriage equality, the — at this time — 14 states that still don’t recognize marriage equality should be marriage equality states by July.

That’s the most likely scenario, but not the only one, Upton said. He said the court could decide to send the ruling back to the lower court — in this case, the 6th Circuit Court of Appeal, which ruled against marriage equality — and could do so without comment. If that happens, the 6th Circuit could change its mind or reaffirm its original ruling.

The court might want more time and decide not to hear the case until the fall session. It could wait to hear more circuit courts weigh in on the issue. The court hasn’t heard from several appellate courts, including the 1st Circuit that includes Maine, Massachusetts, New Hampshire and Rhode Island. All of these states became marriage equality states without appeals court rulings.

Puerto Rico, however, is also in the 1st Circuit, and a judge there ruled against marriage equality last fall.

The 5th Circuit heard appeals on cases from Texas, Louisiana and Mississippi in January but has not issued its ruling yet.

“We’ve been surprised before,” Upton said, referring to the court’s surprise decision in October to not take any of several marriage cases appealed from other federal appellate courts, effectively doubling the number of marriage equality states in a two-month time span.

Marriage equality in Texas

By Upton’s likely scenario, Texas should be a marriage equality state by July.

Mark Phariss, one of the plaintiffs in the Texas marriage case and himself an attorney, said he believes the 5th Circuit will issue a ruling and will do so within the next few weeks. He said the court will probably stay its ruling pending the Supreme Court hearing and decision. But his attorneys plan to ask the court to lift the stay, and, if necessary, appeal to the Supreme Court to lift the stay as it did in the cases in October and more recently in Florida.

Phariss said he’s immersed himself in the various court rulings and briefs filed around the country and he’s “absolutely confident” of a positive ruling by the Supreme Court.

He cited the Michigan case, which involves a couple that adopted special needs children. Based on Kennedy’s other rulings and how much he cares about what’s best for children, Phariss said he couldn’t imagine Kennedy ruling against that couple — especially after Kennedy wrote three previous, positive rulings on LGBT issues, including Lawrence v Texas (the Texas sodomy law challenge) and Windsor.

Other than the 6th Circuit and two lower court rulings, Phariss noted that every court has agreed.

“It’s impossible they’ve all gotten it wrong,” he said.

Co-plaintiffs in the Texas case with Phariss and his partner Victor Holmes are Cleo DeLeon and Nicole Dimetman, an Austin couple expecting a baby in March. They petitioned the court to hold the hearing before they have their baby, Pepping said.

“We expect the 5th Circuit to rule promptly,” Pepping said.

This article appeared in the Dallas Voice print edition January 23, 2015.