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Sixth Circuit Court of Appeals

SCOTUS to hear same sex marriage appeal in April

Get ready.

RedEquality

The Supreme Court will hear arguments over same-sex marriage on April 28 and make audio of the proceedings available later that day.

The gay marriage cases mark the only time this term that the court has agreed to the quick release of audio recordings. But the court is continuing its ban on providing video of its sessions or even live-streamed audio.

The arguments on gay marriage have been allotted two-and-a-half hours on the final Tuesday in April. Audio and the transcript of the proceedings should be available on the court’s website by 2 p.m. EDT, the court said Thursday in a statement.

[…]

Lawyers on both sides will get 90 minutes to argue whether gay and lesbian couples have a constitutional right to marry everywhere in the U.S. Another hour will be devoted to the question of whether states must recognize same-sex unions performed elsewhere.

The appeal is of the Sixth Circuit Court of Appeals decision, the only one in the bunch so far to have upheld inequality. Nonetheless, there is a Texas angle to the appeal.

The nearly 100 plaintiffs challenging gay marriage bans in 15 states on Friday made an impassioned plea to the U.S. Supreme Court, asking the justices to end the practice of treating homosexual couples like second-class citizens by extending them the right to legally wed.

The brief was filed on behalf of 92 plaintiffs, including Mark Phariss and Victor Holmes, a gay couple challenging Texas’ ban on same-sex marriage.

Submitted the day after the Supreme Court announced it would consider the issue on April 28, the 77-page brief says upholding tradition cannot trump upholding the citizens’ constitutional rights; it adds the high court, not state legislatures or ballot boxes, is the correct place to decide the issue since most states with bans in place show no signs of change.

“The continuing hostile environment in some places has revealed many state officials’ unapologetic animus toward gay men and lesbians,” the brief states.

“When asked what he would tell gay and lesbian veterans returning to Texas from the Iraq war, then-Governor Rick Perry responded, ‘Texas has made a decision on marriage, and if there’s a state with more lenient views than Texas, then maybe that’s where they should live.”

Perry made the comment in 2005 after a speech at the Calvary Cathedral International Church in Fort Worth, when he was asked what he would tell homosexual veterans returning to a state that recently had added a ban on gay marriage to its Constitution.

“If the Supreme Court does not now rule against same-sex marriage bans, marriage equality will not come to many states for a long time,” said Phariss.

I remember that statement by Perry. It was one of the ugliest things he’s ever said or done, and he’s said and done a lot of ugly things. I hope that comes back to haunt him.

Anyway. It remains an open question whether the Fifth Circuit will hand down its decision prior to SCOTUS, which is expected to rule by July. Heck, we may not have a ruling from the Fifth Circuit on the motion to lift the stay by then. But one way or another, we should have an answer in a few months’ time.

SCOTUS will take up same sex marriage

This is it.

The Supreme Court announced on Friday that it will take up four cases challenging state bans on same-sex couples’ marriages — a long anticipated move that could lead to nationwide marriage equality.

The cases ask the justices whether Kentucky, Michigan, Ohio, and Tennessee bans on same-sex couples’ marriages and bans on recognition of same-sex couples’ marriages from out of state violate the Constitution’s due process and equal protection guarantees.

The two questions granted by the court for argument are: 1) “Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?” and 2) “Does the Fourteenth 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?”

There will be 90 minutes of argument on the marriage question and 60 minutes of argument on the marriage recognition question, per the court’s order.

The coming showdown before the justices over same-sex couples’ marriage rights has quickly become seen as inevitable following the Nov. 6, 2014, decision of the 6th Circuit Court of Appeals to uphold the bans in Kentucky, Michigan, Ohio, and Tennessee. The ruling set up a disagreement with other appeals courts to have considered the issue; the 4th Circuit, 7th Circuit, 9th Circuit, and 10th Circuit courts of appeals all have struck down such bans on various grounds.

[…]

The same-sex couples plaintiffs’ briefs will be due by 2 p.m. Friday, Feb. 27. The states’ briefs will be due by 2 p.m. Friday, March 27. The reply briefs from the plaintiffs will be due by 2 p.m. Friday, April 17.

Then, likely in late April, the justices will hold arguments over the issue — which would mean a decision, and possible nationwide resolution of the issue, would be expected by late June.

Freedom to Marry has reactions from many of the people that have been directly involved in the litigation, while TPM reports that the Obama administration will formally ask SCOTUS to rule in favor of same sex marriage. This is what we’ve been waiting for, and while I suppose it could all go horribly wrong it’s hard not to feel optimistic. I look forward to seeing the analyses of the case as the briefs get filed and replied to and whatnot. In the meantime, I wonder if this will spur the Fifth Circuit to issue its ruling prior to SCOTUS, or if they’ll be happy to let the Supremes take that task out of their hands. The Trib lists some possibilities:

  • At the very least, the Supreme Court’s ruling — which will likely come in June — will make the 5th Circuit’s decision in the Texas case less consequential, said Aaron Bruhl, an associate law professor at the University of Houston. The 5th Circuit could issue its decision in the case in a few weeks.
  • The Supreme Court’s action on Friday could also delay the 5th Circuit’s decision in the Texas case. “It is possible that at this point [the 5th Circuit] could say, ‘Whatever we say, the authoritative decision is going to come not too much later than we would rule anyway. Maybe we should just wait,'” Bruhl said.
  • Lawyers for each side in the Texas case have said they hope the 5th Circuit rules before the U.S. Supreme Court. Bruhl said it’s possible the parties in the case will ask the court to issue a ruling even though the Supreme Court has taken up the issue again.

I also wonder what the backlash from the bad guys will look like. If all goes well, this ruling could do a lot of good for a lot of people in Texas, but as we have seen, marriage is only a piece of the puzzle. There’s a lot more to be done, and it’s not clear yet who will be more energized by a nationwide defenestration of anti-gay marriage laws. But that’s a thought for another day. For now, let’s celebrate coming this far. SCOTUSBlog and Hair Balls have more.

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.

Sixth Circuit stands up for inequality

It was bound to happen eventually.

RedEquality

Remember the big no-decision decision the Supreme Court issued on same-sex marriage just a month ago? The justices were asked — in five separate cases no less — to weigh in on whether same-sex couples have a constitutional right to marriage. The Supreme Court demurred on the question, which was a significant move in and of itself.

By declining to review any of the cases before it, the justices effectively blessed lower-court rulings that had struck down state gay marriage bans in five states. Circuit courts had been unanimous on the subject. So what more was there to say? Barack Obama even told Jeffrey Toobin recently that he thought this was the best Supreme Court decision of his tenure: a silent statement on the importance of letting cultural change spread across the country, one state at a time.

Well, so much for the power of silence. The U.S. Court of Appeals for the 6th Circuit just reversed rulings striking down gay-marriage bans in Michigan, Ohio, Kentucky and Tennessee. This means that four circuit courts have now struck down gay marriage bans, while one has upheld them. We no longer have unanimity. The Supreme Court, eventually, will have to step in.

The 6th Circuit decision is here. A lot of people had been waiting to see what the Fifth Circuit would do, if they would be the court that provided the circuit split that forced SCOTUS to act, but they took too long. They will still get a chance to have their say, of course, and perhaps now that they wouldn’t have to be the trailblazer for upholding this particular injustice they’ll feel more free to let their colors show. One hopes that in the end neither this ruling nor the one the Fifth Circuit is expected to make will matter. Daily Kos and Freedom to Marry have more.

Other AGs for same sex marriage

Wouldn’t it be nice to have someone like one of these 15 Attorneys General representing Texas?

RedEquality

A majority of the states that have legalized same-sex marriage are throwing their support behind two couples fighting Texas’ ban, arguing their own experiences show only positive effects from expanding the right to gays and lesbians.

[Last] Monday, the attorneys general of 15 states and the District of Columbia filed a “friend of the court,” or amicus, brief supporting the couples’ case pending before the 5th U.S. Circuit Court of Appeals. Writing for the group, counsel for Massachusetts Attorney General Martha Coakley asserts that denying lesbians and gays the right to marry could have harmful effects.

“The continued exclusion of same-sex couples (many of them parents) from the institution of marriage actually serves to harm adults, children and the broader community,” wrote Boston-based attorney Jonathan B. Miller. “This is a case where the exclusion of same-sex couples … irrationally undermines important governmental interests.”

Miller goes on to argue that marriage – whether between a man and a woman or same-sex partners – preserves public order, promotes stable family bonds and ensures economic security.

More family units mean more opportunities for adoption, while expanding marriage rights also benefits the physical and psychological health and economic prosperity of same-sex partners, he wrote.

Drawing from their own experiences, the brief says these 15 states and D.C. “have seen only benefits from marriage equality” and calls Texas’ continued ban “alarmism that is unfounded.”

Our own Attorney General, who will no doubt claim he’s under attack by these amicus briefs and thus the real victim here, is of course opposed to marriage equality and is kind of a jerk about it. It doesn’t have to be like this, and in fact we can change course next month. Democrat Sam Houston is on record saying he would not pursue further appeals of the earlier federal court decision that threw out Texas’ ban against same sex marriage. He said as much in the interview I did with him. Go listen to it, as Lone Star Q did, and hear for yourself.

And with the action by the Supreme Court letting rulings striking down laws against same sex marriage stand in three other circuits, the Fifth Circuit appeal takes on greater significance.

By refusing to hear same-sex marriage appeals from five states that had banned such unions, the U.S. Supreme Court may have set the stage for using Texas’ prohibition as the basis of a future landmark ruling.

[…]

“If the 5th Circuit decides to uphold the ban, there’s a very strong possibility that the Texas case could be a landmark (Supreme Court ruling) two years from now,” said Cary Franklin, a professor at the University of Texas School of Law in Austin.

An upholding of Texas’ ban of same-sex marriage would create disagreement among the federal circuit courts, which have so far been in unison of their support of overturning such bans. In such a circumstance, the Supreme Court might be more likely to step in.

Monday’s action “signals, I hope, the direction the court is going,” said Rebecca Robertson, legal and policy director of the ACLU of Texas. “It’s hard not to look at this optimistically.”

The state’s reply brief to the plaintiffs is due October 10. We are still waiting for the Fifth Circuit to set a date for oral arguments, but the good news is that they have now agreed to fast track the case. One hopes this time Abbott’s office can turn in its homework on time and not drag its feet. It’s generally wise to expect the worst from the Fifth Circuit, but this is one of those times where it’s reasonable to hope for something better. I look forward to this getting finished.

Of interest will be how the Fifth Circuit interprets the non-action by SCOTUS. Lyle Denniston prognosticates:

Third, four other circuits — the Fifth, Sixth, Ninth, and Eleventh — are currently considering the constitutionality of same-sex marriages. Of those, the Ninth Circuit — which had earlier struck down California’s famous “Proposition 8″ ban and uses a very rigorous test of laws against gay equality — is considered most likely to strike down state bans. If that happens, it would add five more states to the marriages-allowed column (Alaska, Arizona, Idaho, Montana, and Nevada), which would bring the national total to thirty-five.

The reaction in those four circuits could depend upon how they interpret what the Supreme Court did on Monday.

If the Court is not likely to uphold any state ban, either on same-sex marriage in the first place or recognition of existing such marriage, lower courts may see good reason to fall in line. The Court’s actions, however, do not set any precedent, so lower courts are technically free to go ahead and decide as they otherwise would.

If they interpret the denials of review as providing no guidance whatsoever, then they would feel free to proceed without reading anything into what the Court has in mind.

It is very hard, however, to interpret the Justices’ actions as having no meaning. Here are the reasons why the denial orders were such a surprise:

Go read the rest. As if on cue, the Ninth Circuit affirmed the lower court ruling that struck down bans in Idaho and Nevada. Emily Badger thinks that the Supremes have basically already had their say in the Windsor decision, which has been the guidepost for the lower courts so far, but Dahlia Lithwick strongly believes SCOTUS still needs to explicitly call same sex marriage bans discrimination before it can say it has concluded its business. Either the Fifth Circuit or the Sixth Circuit might go their own way and uphold the bans, which would force SCOTUS to act sooner rather than later. And as Philip Bump reminds us, South Carolina and Alabama both lad laws banning miscegenation on their books until 1998 and 2000, over 30 years after the Loving decision rendered them unenforceable. So yeah, we are not done here yet. Lord knows, the forces against progress aren’t done; as Ed Kilgore notes, they’re already retuning their dog whistles. There’s a lot more of this story to be told. Hair Balls has more.

Texas same sex marriage plaintiffs want the get oral arguments scheduled

They would like to get on with their lives, if it’s not too much trouble to Greg Abbott and the Fifth Circuit.

RedEquality

Austin lawyer Nicole Dimetman is pregnant and expects to give birth for the first time on March 15, lawyers trying to overturn Texas’ gay-marriage ban announced Sunday.

“The need for justice and equality has always been urgent,” San Antonio lawyer Neel Lane, of the firm Akin Gump Strauss Haurer & Feld, said in a statement. “This development — Nicole’s pregnancy — only underscores that. We hope the [U.S.] 5th Circuit [Court of Appeals] will do what it can to move this case forward expeditiously.”

Dimetman and 13-year partner Cleopatra De Leon, an Air Force veteran, were married in Massachusetts five years ago. They want Texas to recognize their marriage.

After they were married, De Leon gave birth to a boy, now four years old. Dimetman adopted him. But adoption is expensive and time-consuming, and the couple would like to avoid going through the procedure again, Lane said. He noted that while for heterosexual couples, the establishment of parental rights is automatic, De Leon would have to do the adopting this time — to be legally recognized as a parent of the child they’re expecting.

“More importantly, the child will be exposed to great uncertainty and insecurity if, for some reason, Dimetman is rendered incapable of caring for the newborn child,” Lane said. “For instance, if Dimetman did not survive childbirth, the baby could be an orphan without a parent directing the baby’s care.”

The appeals court hasn’t set a date for a hearing in the case. Most of the briefs have been filed, though Abbott is scheduled to respond to the plaintiffs’ latest arguments very soon.

Lane noted that a three-judge panel, yet to be named by the appeals court, will hear the Texas case and one from Louisiana. In the Louisiana case, a federal district judge ruled that state could ban same-sex marriage. Briefs in it are to be completed by Nov. 7, Lane said. So a November oral argument in the Texas case would be ideal, as Dimetman would like to attend, he said. It’s unwise for women to travel late in their pregnancies if that can be avoided, and as of next month, Dimetman won’t have entered her pregnancy’s third trimester, he said.

Their co-plaintiff Mark Phariss wrote an op-ed in support of Dimetman and DeLeon, basically daring the state of Texas to live up to its stated concern about “families”, which our leadership supports far more in the abstract than in reality. The concerns about possible complications with the pregnancy and their consequences are more than theoretical to Dimetman and DeLeon. I’ve said before and I’ll say again, I do not understand the morality of anyone that would work to make the lives of Nicole Dimetman and Cleopatra DeLeon and their children more difficult and less secure. I don’t know if the Fifth Circuit is going to abet justice or stand in its way in this litigation, but one way or another we need to get this show on the road.

That takes on an even stronger urgency now that the Supreme Court has denied petitions to hear appeals of the various appellate court decisions striking down state bans on same sex marriage. By doing so, all of the lower court decisions striking down those bans in Indiana, Wisconsin, Utah, Oklahoma, and Virginia will go into effect, which is to say same sex couples can legally get married in those states, and shortly thereafter in the other states within those judicial districts. If the Fifth Circuit upholds the lower court’s ruling in this case, it seems safe to assume that SCOTUS will let that ruling stand as well. If they overturn it, or perhaps if the Sixth Circuit beats them to it, then that ought to fast-track review. One way or the other, however, further delays are just foot-dragging in the hope of postponing the inevitable. Daily Kos, Texpatriate, TPM, and Unfair Park have more.

UPDATE: Good luck with that, Ted.

SCOTUS halts Virginia same-sex marriages for now

Everyone’s waiting for them to tackle the bigger question.

RedEquality

The Supreme Court on Wednesday stopped Virginia officials from issuing marriage licenses to same-sex couples, putting on hold a lower court ruling that said the unions could start on Thursday.

The court stayed a decision by a panel of the U.S. Court of Appeals for the 4th Circuit, which on July 28 agreed with a district judge’s ruling that Virginia’s ban is unconstitutional. The same panel last week declined to delay its ruling.

But the Supreme Court stepped in after both defenders of the law and Virginia Attorney General Mark R. Herring (D) asked for a stay. Herring believes the law is unconstitutional and joined those challenging it, but said it would be disruptive to allow marriages to begin before the Supreme Court decided the ultimate question of whether state bans violate the U.S. Constitution.

Both challengers of the ban and supporters of the voter-approved measures restricting marriage to a man and a woman have asked the court to use Virginia as a test case to decide the issue. But the justices’ order gave no indication that would happen.

[…]

Wednesday’s stay was not surprising. The justice already had taken similar action in the Utah case, after judges found that state’s ban unconstitutional and refused to issue a stay.

And the Supreme Court later put on hold a judge’s order that the state must recognize the 1,000 or so unions that took place between the decision and the justices’ ruling that the marriages should stop.

The action indicates that the high court wants more lower courts to weigh in instead of giving what might be construed as implied approval of an unbroken string of federal court decisions striking down state bans on same-sex marriages.

The Sixth Circuit is on the clock right now, with others to follow, including (eventually) the Fifth Circuit. SCOTUS should have no shortage of appellate opinions to consider by the end of the year or so.

Lots of same sex marriage appeals about to happen

Busy times in the federal appeals courts.

RedEquality

Federal appeals courts soon will hear arguments in gay marriage fights from nine states, part of a slew of cases putting pressure on the U.S. Supreme Court to issue a final verdict.

If the appeals judges continue the unbroken eight-month streak of rulings in favor of gay marriage, that could make it easier for the nation’s highest court to come down on the side of supporters.

If even one ruling goes against them in the four courts taking up the issue in the coming weeks, it would create a divide that the Supreme Court also could find difficult to resist settling.

“We’re going to be racking up more courts of appeals decisions, and every one we get puts more pressure on the Supreme Court to weigh in,” said Douglas NeJaime, a law professor at the University of California-Irvine. “It’s very likely the Supreme Court ultimately settles this question. Given how quickly things have moved, it’s hard for the court to avoid this in the short term.”

[…]

Arguments similar to those [that were] heard Wednesday will take place Aug. 26 in the 7th Circuit in Chicago, for bans in Wisconsin and Indiana, and for Sept. 8 in the 9th Circuit in San Francisco, for bans in Idaho and Nevada. The 5th Circuit in New Orleans is expected to soon set a date to hear arguments on Texas’ ban.

The flurry of arguments means an upcoming spate of rulings, possibly all issued this autumn, that could profoundly alter the nation’s marriage laws.

If the four federal circuit appeals courts rule in favor of gay marriage, then nine states with pending appeals stand to have their bans stricken down altogether or ordered to recognize out-of-state gay marriages: Ohio, Michigan, Tennessee, Kentucky, Texas, Indiana, Wisconsin, Idaho and Nevada, though the decisions likely would be put on hold for a Supreme Court ruling.

Five additional states under those four circuit courts have gay marriage lawsuits awaiting decisions by federal judges: Alaska, Arizona, Louisiana, Mississippi and Montana.

Observers say the 6th or 5th circuits could deliver the first victory for gay marriage opponents.

We know about the Sixth Circuit, in which arguments were heard this week. We still don’t know when the Fifth Circuit will hear arguments there, but we do know that 63 Texas legislators have signed a brief in the appeal in which they declare that same sex marriage is icky and they totally have Greg Abbott’s back. Hey, remember when something like that would have been bipartisan? This one was an all-R effort, with the TDP and these troglodytes’ two LGBT colleagues firing back. I’m so glad those days are over, even if there are still a few laggards on the issue. In any event, the national picture will almost certainly be a lot clearer, or a lot more complicated, in the next few months.

Marriage equality’s legal winning streak may be on the line this week

And it’s not even the Fifth Circuit Court of Appeals that might bring a halt, however temporary, to the march of progress.

RedEquality

Marriage equality has had a very good run in the federal courts ever since the Supreme Court declared the anti-gay Defense of Marriage Act unconstitutional in 2013. Every single federal court to consider the question has sided with marriage equality, although two federal appellate judges have dissented from this consensus view in the United States Courts of Appeals for the Fourth and the Tenth Circuits.

Nevertheless, equality is likely to face more skeptical judges as more of these cases advance to the court of appeals level. As ThinkProgress warned last June, “appointments to federal circuit courts have historically been much more politically charged than appointments to the lower-ranking district courts, so litigants are far more likely to encounter a judge who was selected for their loyalty to a particular ideology.” We also predicted that the Sixth Circuit, with a strong Republican majority and a history of partisan acrimony, was especially likely to treat a marriage equality case with skepticism.

Next Wednesday, a three-judge panel of the Sixth Circuit will convene in Cincinnati to hear several marriage equality cases arising out of Michigan, Ohio, Kentucky and Tennessee — and the GOP-dominated panel that will hear these cases is unlikely to bring joy into the hearts of equality’s supporters.

If the Sixth Circuit really wants to accept a bunch of ridiculous and widely discredited arguments on behalf of discrimination, there’s not much anyone can do to stop them. History will remember them unkindly, but I suppose we’ll all be dead by then, so YOLO and all that. As the story notes, there’s a chance it might not go down this way, so let’s not get ahead of ourselves. In the end, even a bad decision just means that the Supreme Court will have to take it up sooner rather than later.