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to Section One | to Arts & Entertainment
posted Friday, April 11 2014 - Volume 42 Issue 15
Sixth Circuit may fast-track marriage appeal
Section One
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Sixth Circuit may fast-track marriage appeal

by Mike Andrew - SGN Staff Writer

Michigan state officials have asked the Sixth Circuit Court of Appeals to allow an en banc hearing in the case of DeBoer v. Snyder, in which a federal district court struck down the state's ban on same-sex marriage.

An en banc hearing -in other words one before the full appeals court rather than a three-judge panel -would expedite the appeals process and possibly bring the case before the U.S. Supreme Court before similar cases pending in other states.

According to Michigan's filing, since all states that fall within the Sixth Circuit's jurisdiction have marriage equality cases pending there, an initial hearing that results in a decision by all Sixth Circuit judges would avoid duplication of effort and possible confusion.

The legal issues in the case are of 'exceptional importance,' Michigan officials told the Sixth Circuit in their April 4 filing, and 'the question's importance is highlighted by the fact' that each of the four states in that circuit had adopted a similar ban on such marriages and that each has been wholly or partly nullified.

'To resolve this issue swiftly and to preserve the resources of the court and the parties, Michigan petitions for initial hearing en banc,' the state filing said, noting that all four cases from courts within the circuit 'are proceeding swiftly in parallel and will have briefing completed within weeks of each other.'

On April 8, the Sixth Circuit asked the plaintiffs in the case to respond to the state's request. They have until April 21 to do so.

Federal district courts in Michigan, Kentucky, Ohio, and Tennessee have ruled in favor of same-sex marriage claims -sometimes broadly, sometimes more narrowly -and each of those rulings has now been appealed. The Sixth Circuit has put each of them on an expedited review schedule.

The normal procedure for cases in the federal appeals courts begins with review by a three-judge panels. If the case is of major importance, it may subsequently go before the full tribunal. It takes a majority vote of all of the active judges on the full court to grant en banc hearings. According to the Equality on Trial website, such review is 'not common, but it also is not rare.'

Michigan officials have asked only for en banc review in their own case, but if the Sixth Circuit took on that case, appeals from other states would probably be put on hold in the meantime, legal experts said.

While the facts in each of the cases differ, the legal issues are essentially the same in each, and would be the same before an en banc court. The ruling in the Michigan case was broader than those in the other three states, where judges only dealt with recognition of same-sex marriages from other jurisdictions.

Meanwhile, District Judge Timothy Black, who ruled in the Ohio case, said on April 4 that he would soon expand his ruling to order full marriage equality in Ohio. Ohio state officials said they would appeal any such ruling to the Sixth Circuit.

Ohio Congressman John Becker has introduced a House resolution to impeach Black because of his ruling in the marriage case, Henry v. Wymyslo. To date, he is the only sponsor of the resolution.

While most observers believe the U.S. Supreme Court will ultimately decide the slew of marriage cases now being fought out in federal courts, they are under no obligation to do so. In fact, the Supreme Court will normally intervene only if several federal courts reach different conclusions on points of law.

To date, only one District Court in Nevada has refused to find in favor of same-sex couples seeking marriage rights, and the Ninth Circuit, which has jurisdiction over Nevada, has already found in favor of marriage equality in the Prop 8 case from California. In every other case, federal courts have found in favor of same-sex couples, and there is no reason to believe that any circuit court will reverse them.

Consequently, the Supreme Court may well pass on the marriage cases, allowing Circuit Court rulings to stand. At least four Supreme Court Justices must agree to hear a case before the high court will take it up.

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