NEW ORLEANS (AP) — The state of Louisiana agrees with gay rights activists about one thing: asking the U.S. Supreme Court to take the rare step of hearing an appeal of Louisiana’s ban on same-sex marriages before a federal appeals court rules.
The request filed this week by Washington attorney Kyle Duncan asks the justices to hear appeals of Louisiana’s case and the only other federal court decision to uphold gay marriage bans. The 6th U.S. Circuit Court of Appeals in Cincinnati upheld bans in Kentucky, Michigan, Ohio and Tennessee.
The 5th U.S. Circuit Court of Appeals is to hear Louisiana’s appeal and one from Texas on Jan. 9.
“We likely won’t know whether the Supreme Court will take up any of the pending petitions until mid-January at the earliest. By then, we will have already argued the Fifth Circuit case,” Duncan wrote in an email.
In his request, he said he agrees with gay-rights that Louisiana’s case and the Cincinnati appellate court ruling should be considered together.
When that application was filed in November, Duncan said that unless the high court intervened, he would continue in appellate court.
He said he hasn’t changed his mind. “We still plan to go ahead in the Fifth Circuit. But if the Supreme Court decides to wade into the issue now, we would like Louisiana’s case to be one of the cases reviewed, which could be accomplished by granting the petition now rather than waiting for a Fifth Circuit ruling,” he wrote in an email.
Twenty federal district judges and four federal appeal courts have ruled that gay marriage bans are unconstitutional under a 2013 Supreme Court decision striking down part of the Defense of Marriage Act, a federal law against gay marriage.
“The Louisiana decision provides a crucial counterpoint to the many erroneous decisions usurping state authority to define marriage,” Duncan wrote in the request for review.
Louisiana also is in a unique position because a state district judge found its amendment against same-sex marriage unconstitutional, he wrote. That case is before the state Supreme Court, he wrote, putting state officials “between the Scylla and Charybdis of conflicting state and federal rulings.”
Hearing both cases in which judges upheld the bans would allow the justices to consider “the widest possible range of state marriage laws,” he wrote.
The justices rarely agree to hear a case before a federal appeals court has weighed in. One such example was the 1974 dispute over President Richard Nixon’s refusal to hand over Watergate tapes to special prosecutor Leon Jaworksi. After Jaworksi won in a federal trial court, both sides appealed directly to the Supreme Court, bypassing the court of appeals in Washington. The Supreme Court’s rulebook says the justices will deviate from the routine “only upon a showing that the case is of such imperative public importance.”
A federal solicitor general asked the Supreme Court to consider the DOMA case before it went to the 2nd Circuit. The 2nd Circuit heard and ruled on the case before the justices agreed to consider it.
