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What do we expect from the Fifth Circuit and SCOTUS on same sex marriage?

Some people are very optimistic.

RedEquality

Same-sex marriage will arrive in Texas before Easter, according to an attorney for two couples who are challenging the state’s marriage bans in federal court.

Daniel McNeel Lane Jr., of Akin Gump Strauss Hauer & Feld in San Antonio, made the prediction as he prepared for oral arguments in the case at the 5th U.S. Circuit Court of Appeals in New Orleans on Friday.

[…]

“I don’t think it will be stayed, certainly not by the Supreme Court, I don’t think it will be reviewed by the Supreme Court, and I think we’ll have marriage equality by Easter,” Lane told the Observer on Friday. “That’s my prediction. … That’s my strong feeling.”

On the same day as oral arguments at the 5th Circuit, the U.S. Supreme Court will meet to decide whether to hear same-sex marriage cases from four other states, which could pave the way for a nationwide ruling in favor of marriage equality as early as June. As of Tuesday, when same-sex marriage takes effect in Florida, Texas will be one of only 14 states where it’s still prohibited.

“Whatever the Supreme Court does, we will still make our arguments, the 5th Circuit is likely still to rule, and let the chips fall where they may. I’m sure that’s what our panel’s view will be,” Lane said. “The two will not be connected, and this court knows that if it affirms Judge Garcia, and finds that residents of this state have a right to marry the person they love, regardless of gender … it’s likely that that freedom, that equality, that justice, will come very swiftly, and the tide of that equality will never be turned back.”

Kenneth D. Upton Jr., senior counsel for the LGBT civil rights group Lambda Legal, which is handling the Louisiana marriage case, said marriage equality in the 5th Circuit before Easter is “certainly one possibility.” But Upton added, “There are a couple of things that could throw a wrench in that prediction.”

Upton said if the 5th Circuit panel rules in favor of marriage equality, it’s possible the state of Texas would appeal the decision to the 15-member court en banc—which would be “a more hostile setting.”

“I don’t think the panel would stay it, but if the 5th Circuit grants rehearing before the entire court, the panel decision is automatically vacated,” Upton said. “So, I suspect Abbott’s office would play that card since they have nothing to lose.”

Upton said the 5th Circuit panel could also simply decide to wait for the high court.

“If they [Supreme Court justices] grant any petitions, and because they aren’t staying cases anymore, I think any subsequent court of appeals case will be held to see what the ultimate answer is,” he said.

Lambda Legal has asked the high court to review the Louisiana case even though the 5th Circuit hasn’t decided it yet—a type of request that’s rarely granted but that will also be considered Friday. Upton said whether the Supreme Court agrees to hear the Louisiana case, one of the other four cases or some combination, he thinks Friday’s proceedings in New Orleans will be upstaged by what happens in Washington.

“The arguments in the 5th [Circuit] will not be the real story that day,” he said. “It will be [the Supreme Court]. I feel pretty sure they will grant something that day.”

That’s not all the Supreme Court is being asked to do.

Idaho’s governor and attorney general are asking the U.S. Supreme Court to make same-same marriage illegal in the state, nearly four months after a federal appeals court affirmed that it was unconstitutional for Idaho to prohibit same-sex couples from getting married.

Gov. Butch Otter’s petition, filed Tuesday, said the 9th Circuit Court of Appeals was wrong when it maintained that banning same-sex marriage violates couple’s equal protection under the Fourteenth Amendment. Otter asked the Supreme Court to take up the issue once and for all, saying the state’s ban on same-sex marriage was not about discrimination against gay couples — rather, it was about the children.

“[Idaho’s] view of marriage is biologically based and primarily child-centered,” the petition reads. “And it holds that the principal (though not exclusive) purpose of marriage is to unite a child to his or her biological mother and father whenever possible, and when not possible, to a mother and father.”

“The time has come for this court to resolve a question of critical importance to the States, their citizens and especially their children: Whether the federal Constitution prohibits a State from maintaining the traditional understanding and definition of marriage as between a man and a woman,” the petition reads.

SCOTUS will be busy today.

On Friday, Supreme Court justices will meet in private to consider whether to act on cases that could provide a nationwide answer on whether same-sex marriages must be allowed. On the same day, a federal appeals court will consider bans in Texas, Mississippi and Louisiana.

“It’s an incredible confluence of events,” said Shannon Minter, legal director for the National Center for Lesbian Rights. “It’s the culmination of many years of work.”

[…]

The justices this week will be considering petitions from five states where lower-court judges, bucking a nationwide trend, upheld laws banning same-sex marriage and barring the recognition of such unions performed in states where they are legal.

In all but one case, even the winning side has asked the Supreme Court to accept the cases and settle the issue during its current term, which will conclude at the end of June.

Without explanation, the justices in October passed up that chance. But that was before a panel of the U.S. Court of Appeals for the 6th Circuit in Cincinnati ruled that there was no constitutional right to marriage that must be extended to gay couples and that states were free to define marriage as they wished.

Because four other regional appeals courts have ruled the other way, “the court is more likely to decide the issue now than when it denied review last October,” Kyle Duncan, a Washington lawyer defending Louisiana’s bans, said in an e-mail.

The Supreme Court does not have to announce its decision on the petitions Friday. But generally the justices must accept a case by the end of January in order to hold oral arguments and rule by June.

If they do not, same-sex marriages will probably remain legal in the majority of states through 2015 and banned in the rest.

Well, that ought to settle the “legal by Easter” matter quickly. I feel optimistic, but boy howdy are the stakes high. And as we’ve seen in the Legislature, there are still plenty of avenues available at this time for the forces of bigotry to roll back progress. We’ll see what happens. Hair Balls has more.

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