Litigation Round-Up: Where the freedom to marry stands in the appeals courts
March 27, 2014
2014 has been a huge year for the freedom to marry - in just over three months, we've seen nine huge federal court victories in states across the country, and in total, there are more than 60 lawsuits seeking the freedom to marry or respect for same-sex couples' marriages working their way through the system in 29 states or territories. Keeping track of what's going on in state, federal, and trial courts can be challenging, as they move quickly. That's why Freedom to Marry has been keeping tabs on litigation with our Marriage Litigation resource to provides a comprehensive overview at all of the marriage-related legal cases already underway. Special thanks to Kathleen Perrin at Equality Case Files for always being thorough in posting essential documents from the courts.
The national strategy has always been to win a final victory in the Supreme Court; the key to encouraging the Court to rule in favor of the freedom to marry nationwide is to work the tracks of the Roadmap to Victory: growing public support, winning marriage in more states, and ending federal discrimination. By the time we return to the Supreme Court with a marriage case, we must create the climate that maximizes our chances at a 50-state victory. Freedom to Marry applauds the work of the legal organizations behind these marriage lawsuits, and we are excited to continue making the case to win marriage nationwide.
After last Friday's amazing victory in Michigan - which resulted in several hours of the freedom to marry in some Michigan counties on Saturday - it's a good time to check in on the state of marriage litigation across the country:
In nine states, marriage litigation is currently pending at the federal appellate level in five different Circuit Courts. Here are the basics in each:
The 10th Circuit:
Two cases - Kitchen v. Herbert in Utah and Bishop v. Smith in Oklahoma - will share oral arguments in April (on April 10 and April 17, respectively) at the 10th Circuit Court of Appeals in Denver. Both cases seek the freedom to marry or respect for couples' out-of-state marriages, and both cases are going into the appeals level with huge victories from December 2013 and January 2014. This month, Freedom to Marry worked as a leading partner to launch Utah Unites for Marriage, a coalition of state and national partners working to ramp up the conversation around why marriage matters in Utah. We also spoke with two of the plainitffs in the Oklahoma case, Mary Bishop and Sharon Baldwin, and got an oral history of their case, which has been pending for over nine years. For more information about marriage litigation at the 10th Circuit, click here.
The 6th Circuit:
All four states in the 6th Circuit currently have litigation pending at the appellate level. Ohio's Obergefell v. Wymsylo - in which a judge ruled that Ohio must respect marriages between same-sex couples for the purpose of listing a surviving spouse on a death certificate - is scheduled to begin briefing on April 10, with the plaintiffs' reply brief due May 13. In Michigan, briefing in DeBoer v. Snyder - in which a judge struck down Michigan's constitutional amendment restricting same-sex couples from marriage - begins on May 7, with the plaintiffs' reply brief due June 9. There's not currently a schedule for Kentucky's Bourke v. Beshear - in which a judge declared that Kentucky must respect the marriages of same-sex couples legally performed out of state - or in Tennessee's Tanco v. Haslam - which saw action this month when a judge granted a temporary preliminary injunction respecting the marriages of three plaintiff couples as their case continues through court.
The 9th Circuit:
Oral arguments have not yet been set in Sevcik v. Sandoval, a Nevada case that seeks to overturn anti-marriage laws across the state. The Nevada Attorney General and Governor have stopped defending the state's marriage ban. As the case waits to be scheduled, Freedom Nevada, a coalition of state and national partners, continues to make the case that Nevada is ready for the freedom to marry.
The 4th Circuit:
Oral arguments have been scheduled in Bostic v. Schaefer, the federal court challenge that brought down Virginia's constitutional amendment restricting marriage to different-sex couples in February 2014. The case will be heard by the 4th Circuit Court of Appeals on May 13, 2014.
The 5th Circuit:
The Texas case DeLeon v. Perry, which received a ruling last month declaring that Texas laws banning same-sex couples from marrying are unconstitutional, has yet to receive a briefing schedule or time frame for oral arguments.
Nearly 30 other cases are also now being considered in federal court. Most pressing is Geiger v. Kitzhaber in Oregon, where same-sex couples will argue against anti-marriage laws in Oregon on April 23. Soon after, on May 28, oral arguments will be heard in Palladino v. Corbett, which seeks respect for a couple's out-of-state marriage in Pennsylvania. On June 9, a trial is scheduled in Whitewood v. Wolf seeking the freedom to marry and respect for out-of-state marriages in Pennsylvania, and on June 25, oral arguments are scheduled in Louisiana's federal challenge Robicheaux v. Caldwell. The last date on the calendar for federal lawsuits is in Wisconsin's Wolf v. Walker, where a judge has scheduled a trial on the freedom to marry for August 25.
Federal lawsuits are also pending in Alabama, Arkansas, Arizona, Florida, Idaho, Indiana, North Carolina, Puerto Rico, South Carolina, and West Virginia.
In state court, nearly 20 cases are pending, with a hearing scheduled in an Arkansas challenge for April 17. State challengse are also pending in Alabama, Colorado, Florida, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Pennsylvania, South Carolina, Texas and Wyoming.