Freedom to Marry executive director Evan Wolfson (Photo: Diego M. Radzinschi / NLJ)
Federal court decisions striking down same-sex marriage restrictions have moved, or are about to move, into four federal appellate courts, increasing the likelihood of U.S. Supreme Court review in 2015 or soon thereafter.
A federal district judge in Virginia on Thursday evening became the fifth federal judge in the past two months either to invalidate a state ban or to require certain recognition of legally married gay couples in their states.
The Virginia case, Bostic v. Rainey, is expected to be appealed to the U.S. Court of Appeals for the Fourth Circuit. Other cases pending, or about to be appealed, are in the Sixth, Ninth and Tenth circuits.
“It has always been about getting to the Supreme Court,” said Evan Wolfson, president of Freedom to Marry. “But given the dynamics of the landscape—46 cases in 25 states and new ones being filed every week—we are potentially on a timeline that would have us back in the Supreme Court in 2015 and possibly a little longer. We have to work as if we’re on the urgency of the 2015 timeline and where we’re in front of the Supreme Court a little later.”
The Supreme Court last June did not reach the seminal question of whether states, consistent with equal protection of the law, could define marriage as the union of a man and a woman. That question was posed in a challenge to California’s same-sex marriage ban. The justices, in a 5-4 ruling, held that the proponents of the ban lacked standing to defend it. The decision in Hollingsworth v. Perry left in place a district court decision striking down the ban as a violation of equal protection and due process.
In the Virginia case, U.S. District Judge Arenda Wright Allen struck down a state constitutional amendment approved by voters in 2006 that bans same-sex marriage and prohibits recognition of same-sex marriages performed in other states.
On Friday, Theodore Olson of Gibson, Dunn & Crutcher, counsel to the two same-sex couples in the Bostic challenge, said he felt “confident the right outcome will prevail” in the Fourth Circuit because of the reasoning in Wright Allen’s decision. And even though state officials have refused to defend the state amendment, Olson said, the ban would have a “full throated” defense in the Fourth Circuit because clerks who issue marriage licenses in the state have participated in the lawsuit and the state attorney general continues to enforce the law.
Neither Olson nor his co-counsel, David Boies of Boies, Schiller & Flexner, would predict when or whether their case or others percolating in the lower courts would be first at the Supreme Court.
Byron Babione, senior counsel with Alliance Defending Freedom, counsel to the Prince William County clerk of court defending the Virginia ban, said on Friday in a written statement, “Because the court’s ruling interferes with the right of Virginians to determine the future of marriage in their state and raises serious constitutional issues, we are reviewing the judge’s decision with our client and considering our next steps.”
A second Virginia challenge to the state ban, Harris v. McDonald, is a class action brought by the American Civil Liberties Union in Harrisonburg. Paul Smith of Jenner & Block, who is assisting in that suit, was hopeful the judge would rule quickly “so the rest of the people of Virginia” would enjoy the fundamental right to marry.
Smith noted that, nationally, “Things are moving fast and judges have been remarkably uniform in their rulings, which suggests the judges are falling into line on this issue. I’m optimistic about the Fourth Circuit.”
Contact Marcia Coyle at firstname.lastname@example.org.