Supreme Court Turns Down Same Sex Marriage Cases, Puts Spotlight on 5th Circuit

Federal circuit fight!
Federal circuit fight!

Monday morning word came down from on high, or wherever it is the Supreme Court proclamations come from, that the court would not hear any of several same-sex marriage cases it could have this term. In turning down cases from the 4th, 7th and 10th federal circuit courts, the Supreme Court paved the way for same sex marriage to become legal in Virginia, Indiana, Wisconsin, Utah and Oklahoma -- the states whose appeals were denied -- as well as Colorado, Kansas, Wyoming, North Carolina, South Carolina and West Virginia -- states without a pending same-sex marriage case that are covered by those circuits.

The Supreme Court didn't say why it refused to hear the appeals, but it should be noted that there is not yet a circuit split with regard to same-sex marriage. Until a lower court upholds a marriage ban, there is no dispute among the circuit courts for the Supreme Court to resolve.

It shouldn't be long, though. San Antonio-based federal Judge Orlando Garcia struck down Texas' same-sex marriage ban in February. The ruling was stayed pending the state's appeal, which will end up in the 5th U.S. Circuit Court in New Orleans. That court, which recently shuttered all but eight of Texas' abortion clinics, is perhaps the most conservative U.S. circuit court.

It should be said that there is a chance, however small, that two of the 5th's more liberal judges could be selected for the three judge panel that will rule on Texas' case. Were that to happen -- five of the 15 judges sitting on the circuit were appointed by President Clinton or President Obama -- Garcia's ruling might be upheld.

Razvan Ungureanu, a Houston attorney and frequent contributor to his firm's 5th Circuit blog, says that given the court's composition there's a good chance Garcia will be overruled, creating a circuit split that would make the Supreme Court more likely to tackle an issue it has largely avoided thus far.

The 5th circuit denied plaintiffs' in the Texas case request for an expedited hearing in May. Oral arguments for the case have not yet been scheduled.

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