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The Fifth Circuit is in no hurry to rule on same sex marriage

Such a show of courage on their part.


The Fifth Circuit Court of Appeals tentatively has scheduled oral arguments in the Texas and Louisiana gay marriage cases for early January, disappointing local advocates and possibly delaying until 2016 a hearing by the U.S. Supreme Court.

Texas gay marriage advocates were disappointed with the Monday announcement. The New Orleans-based appeals court had earlier agreed to expedite the hearing, and the appellees hoped oral arguments would be scheduled before the New Year.

“This doesn’t look like a very expedited schedule to me. But justice can’t come soon enough,” said Daniel McNeel “Neel” Lane, an attorney for the two same-sex couples challenging Texas’ ban on gay marriage. U.S. District Judge Orlando Garcia of San Antonio struck down the 2005 ban in February, saying it violated couples’ 14th Amendment rights to due process and equal protection.

Nicole Dimetman and her wife Cleopatra DeLeon, one couple on the appeal, are expecting the birth of their second child in March. They had requested an expedited hearing in the hopes the legal process would be completed, or at least further along, at that time.

“I may have to miss the argument in January because I will be in my third trimester and may not be able to travel,” Dimetman said. “That is sad for Cleo and me and for everyone else who is waiting for the Fifth Circuit to recognize our right to marry.”


Many agree a circuit court split of this kind is most likely to occur in the Fifth or Sixth Circuits, seen as the two most conservative appeals courts in the country. Oral arguments in the Sixth Circuit have already taken place, and a federal judge in Louisiana became the first to uphold a state’s same-sex marriage ban in September.

“I think the safest thing to say is the Supreme Court is waiting for a clear circuit split…and these cases raise that very significant possibility, said Kyle Duncan, special counsel the state of Louisiana has hired to handle the challenge to its gay marriage ban. “They were already extremely important cases and now even more so,” Duncan said, adding he also thought the hearing would have been scheduled a little sooner.

But unless the Ohio-based Sixth Circuit upholds a state ban soon, the Fifth Circuit may not rule on the Texas and Louisiana cases until after the current Supreme Court term ends in June, said University of Richmond School of Law Professor Carl Tobias. This would push back any hearing by the high court justices until the 2015 term, which starts in October, thus delaying an ultimate decision until 2016.

See here and here for the background. I’m going to play the contrarian card here and suggest that the logical explanation here is that the Fifth Circuit knows full well there’s no rational argument for upholding Texas’ ban on same-sex marriage. It’s just that they don’t want to uphold the lower court either. So, they delay, figuring it maintains the status quo as long as possible without making them look like complete idiots. Anyone got a better crazy theory than that? Lone Star Q has more.

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One Comment

  1. The “crazy theory” sounds too sane for the Fifth Circuit. I’ve never known them to back away from looking like idiots. Just sayin’.