Sign Up to Receive Email Action Alerts From Issa Exposed

Fifth Circuit Court of Appeals sets briefing schedule in Texas marriage equality case

LGBT Legal Cases Marriage equality Marriage Equality Trials

Texas state sealThe Fifth Circuit Court of Appeals has filed an order in DeLeon v. Perry, setting the briefing schedule in that challenge to Texas’ same-sex marriage ban. The district court had granted a preliminary injunction back in February, against enforcing the ban and the state’s refusal to recognize same-sex marriages legally performed outside of the state, but he then stayed the effects of that decision pending the appeal.

The state filed its appeal, in the conservative-leaning Fifth Circuit, hoping to overturn the preliminary injunction.

Most of the recent developments in the case happened as far back as March, and this month, the appeals court rejected a request to fast-track briefing and argument in the case.

The opening brief will be filed July 9, and the plaintiffs’ brief is due 30 days after that.

The court has not yet set an argument date.

Thanks to Kathleen Perrin for these filings

For more information on De Leon v. Perry from The Civil Rights Litigation Clearinghouse, click here.


  • 1. davep  |  May 30, 2014 at 2:46 pm

    Well even without approving the fast-track, it looks like it's still proceeding rather briskly compared to things like Prop 8 and the Nevada trial.

  • 2. Ragavendran  |  May 30, 2014 at 4:37 pm

    Their own rules state that priority is to be given to appeals that involve preliminary injunctive relief (among other subjects), so I'm not surprised. If it had been fast-tracked, it would move even faster. I guess it could be heard as early as October, if not September.

  • 3. SWB1987  |  May 30, 2014 at 4:54 pm

    Would they speed it up if any Louisiana or Mississippi district court judges were to strike down their respective state's gay marriage bans too?

  • 4. Dr. Z  |  May 30, 2014 at 9:48 pm

    Yes, their eyes would spin much faster.

  • 5. Matt  |  May 30, 2014 at 7:36 pm

    I'm not sure that we want the conservative Fifth Circuit to go any faster. I'd like to have a favorable appellate ruling or two in place before the Fifth rules

  • 6. Ragavendran  |  May 30, 2014 at 7:42 pm

    I expect the Tenth and Fourth will rule soon, and in our favor. Also, the Sixth and Ninth Circuits are set to hear oral arguments in a total of SEVEN appeals (Ohio1, Ohio2, Michigan, Tennessee, Kentucky, Idaho, Nevada) before the Fifth hears Texas out. They may even wait to see if the Supreme Court grants cert in any of the three appeals out of Utah, Oklahoma and Virginia before coming out with a ruling.

  • 7. more coffee  |  June 2, 2014 at 11:32 am

    I know that there is no way to predict this accurately, but do you have any thoughts on when, exactly, we might hear any news from the 10th? educated guess, perhaps? 🙂

    Anxious Okie here…

  • 8. Ragavendran  |  June 2, 2014 at 12:09 pm

    Alas, I have no significant case law knowledge regarding the Tenth Circuit (or any Circuit), or, more importantly, with statistics on how quickly any of the three panelists there have released majority opinions that they've authored in the past. That would be very helpful and could be used to make "educated" guesses. My wish is that two strongly worded favorable opinions from the Tenth Circuit should be written by Judge Holmes, an African American with an impeccable conservative track record appointed by George W Bush. And similarly, in the Fourth Circuit, Judge Gregory, again African American, re-nominated/endorsed by George W Bush (though previously recess appointed by Clinton), should author a strong majority opinion for us. Wildly speculating, a June 26 date for these judgments would be fitting, since it is the Windsor anniversary.

  • 9. Bruno71  |  June 2, 2014 at 2:04 pm

    I don't have anything to add regarding timing, but I do think the opinion will be penned by Holmes, applying a heightened scrutiny basis.

  • 10. Rik  |  May 30, 2014 at 7:43 pm


  • 11. Big Rick  |  May 30, 2014 at 7:56 pm

    I don't think it matters which circuit rules first, favorable or not. I think that whether a circuit split occurs or not, SCOTUS will grant cert to one or more cases and make a ruling. I just hope that it is unambiguously in our favor.

  • 12. Sagesse  |  May 31, 2014 at 4:20 am

    Actually, if there is more than one appeals court decision for marriage equality, it will become harder and harder for the fifth to go the other way. A slew of district court decisions is impressive, but doesn't set the bar (mixed metaphor – ugh) for a circuit court the way other appeals courts will.

  • 13. Dr. Z  |  May 31, 2014 at 8:11 am

    Agreed. They can't keep these stays in place forever.

  • 14. Japrisot  |  May 30, 2014 at 9:33 pm

    There is movement out here in the Ninth Circuit as well. Governor Otter has petitioned the court for an initial hearing en banc, attempting to bypass the standard 3-judge panel hearing.

    The filing is here:

  • 15. Dr. Z  |  May 30, 2014 at 9:51 pm

    He'll probably have about as much luck as Michigan did in the Sixth.

  • 16. F_Young  |  May 31, 2014 at 2:41 am

    "The filing is here:… "

    I didn't realize until reading this that the title of a legal case could use a party's nickname instead of their given name: Governor C.L. (Butch) Otter

  • 17. ebohlman  |  May 31, 2014 at 8:27 am

    That's presumably how his name appeared on the ballot, and therefore the correct name to use for him when referring to his official role.

  • 18. Retired_Lawyer  |  May 31, 2014 at 5:07 am

    It is difficult to imagine the Ninth Circuit granting this petition. The en banc dispute among the appellate judges at the Ninth Circuit concerning SmithKline , and a heightened scrutiny for gay discrimination cases, will almost certainly be resolved before Latta is considered; Idaho's attempt to inject its dispute into the pending questions about scrutiny would only complicate matters for the Ninth. It would certainly not clarify any issues, nor provide the judges with arguments they have not heard. Idaho's contention that the SmithKline standard is inconsistent with other circuits except the Second, elides that the Second Circuit's decision, Windsor, is the only one affirmed by the Supreme Court. The panel decision in SmithKline is the only appellate decision (so far) to apply Windsor. Arguably, the pre-Windsor decisions from other Circuits regarding scrutiny levels may no longer have precedential value..

  • 19. debater7474  |  May 31, 2014 at 8:24 am

    We should hope that they grant the motion for en banc. The ninth circuit is more liberal, but if they only have a three judge panel it's easy to randomly get some panel with two conservatives. If there are eleven judges, which is the ninth en banc, you are less likely to get a random accident and more likely to get a panel representative of the ninth's (more liberal) views.

  • 20. SWB1987  |  May 30, 2014 at 10:14 pm

    Do y'all think there is any possibility that SCOTUS won't grant a circuit cert and let the appellate ruling stand over the entire circuit if it's for gay marriage?

  • 21. bythesea  |  May 30, 2014 at 10:37 pm

    Yes, it's possible, but I think we've reached the point for a nationwide final ruling.

  • 22. Dr. Z  |  May 31, 2014 at 8:31 am

    As soon as one of the Circuit courts comes down in our favor – which could happen any day now – SCOTUS is going to be boxed in by these stays. If their intent is to have the final word on the constitutionality of DOMA laws then they will stay the circuit court decision but grant cert to the case in their 2014-2015 term. In that case a decision is likely in June 2015 (if they follow their usual pattern in gay rights cases of holding the decision until the final week of the term.)

    On the other hand, if they don't stay the circuit ruling and don't grant cert, ME will become the law across the US in piecewise fashion, one circuit at a time. It is possible SCOTUS would never have to take a ME case if the circuits did this on their own. I think this scenario is pretty unlikely since allowing the legal status of SSM to vary across state lines is untenable. It was one thing for a state to refuse to recognize a SSM that had been solemnized by another state; it's an entirely different matter for a state to refuse to recognize a SSM that was made possible by a federal circuit court which found that same sex couple's rights were being violated under the US Constitution. Constitutional rights do not stop at state borders.

    This is why SCOTUS will be forced to grant cert as soon as a Circuit court rules in our favor.

  • 23. Pat  |  May 31, 2014 at 2:18 pm

    What is the timeline after a Circuit court rules in out favor (assuming it does)? How are things likely to proceed from then on, in terms of appeal procedure to SCOTUS, etc.?

  • 24. Retired_Lawyer  |  May 31, 2014 at 5:59 pm

    The timeline for United States v. Windsor, 570 U.S. 12 (2013) went like this. The Second Circuit affirmed the District Court's decision in favor of Edith Windsor on Oct. 18, 2012. The Supreme Court granted cert on Dec. 7, 2012 (Pearl Harbor Day for my fellow geezers). Oral argument took place on March 27, 2013, and the decision was released on June 26, 2013–ten years to the day from the decision in Lawrence v. Texas, 539 U.S. 558 (2003) overturning the sodomy laws.

  • 25. Ragavendran  |  May 30, 2014 at 11:35 pm

    Neat article on Judge Jones:
    Sure, I’ve been called an activist judge plenty of times. But as Sandra Day O’Connor once said, an activist judge is simply a judge with whom you disagree.”

  • 26. Quest  |  June 1, 2014 at 10:47 am

    I think Scalia, Alito, Roberts and Thomas are activist in the cheating sense. They seem to ignore established legal precedent when it comes to the rights of the gays. Whether Scalia likes Romer, or Lawrence, or not, he is expected to adhere to the rule of law with power, but instead, he and his 3 Christian bigot colleagues connive against us, and they do it with zeal. I think they're the most corrupt, backwards activist Christian bigots holding a powerful position above us, and not worthy of it.

  • 27. Dr. Z  |  June 1, 2014 at 8:58 pm

    There's a long-established history of disregarding established rules when it comes to teh gheys. That's why the establishment gay groups were so reluctant to wage a frontal assault for marriage equality, from Hawaii '92-93 through Olsen and Boies 2009-2010.

    I'm not saying they were wrong, either, as "gay equals stay" has demonstrated.

  • 28. Andrew  |  June 2, 2014 at 7:37 am

    Following established legal precedent is not always advisable for a Supreme Court judge. It cuts both ways, liberal and conservative. Prior rulings are not what determines what the law is. The law is what it is and what it always has been. What judges do is try to figure out what that actually is and what it means when applied to specific facts. If a Supreme Court judge disagrees with prior rulings, they should rule as they see appropriate, but tradition says the more recent the "wrong" prior ruling is, the more likely the judge will go along with the wrong ruling rather than try to overturn that wrong ruling. They do this because they think it is better for citizens to have consistency rather than having correct rulings. In the case of marriage equality, there is not a strong argument for consistency with prior rulings especially when the harm of continuing with old interpretations is great. Twenty-years ago, not many gay couples were looking to get married because they were not comfortable being so public about their sexual orientation. As far as whether to interpret the constitution as it was written or as it applies today, there is nothing in our laws that says one way is "better" or more right than the other. That's why elections matter… you vote for a President that has the same views as you. Its not about what is the right way to view the law, its just a preference. I like the more liberal view myself.

  • 29. Sagesse  |  May 31, 2014 at 4:54 am

    Great article, interesting man. With his prior history in the intelligent design case, he's given an unusually relaxed and open interview, for a sitting judge.

  • 30. david  |  May 31, 2014 at 6:21 am

    Is 6th circuit Deboer V Snyder set for oral arguments. I know on 5/7/14 MI filed it's brief and DeBoer is due end of next week.

  • 31. Ragavendran  |  May 31, 2014 at 8:33 am

    Not yet. There are rumors that all the Sixth Circuit appeals are being considered for hearing on the same day in early August and they're asking the Counsel for feedback. But nothing has been confirmed yet.

  • 32. MIDave  |  June 4, 2014 at 1:12 pm

    Just got confirmation from an attorney friend who is connected to the firm representing the DeBoer side. 8/6/14 is confirmed for oral arguments

  • 33. M.-  |  May 31, 2014 at 6:52 am

    Hi to everyone! …Need some help here: does anyone know when, approximately, will the Tenth and Fourth Circuits issue their opinions? ..If I'm not wrong, the Utah case was heard almost two months ago, how much time do US Circuit Courts take to write and publish their opinions after hearings are completed? Are there any rules to follow or is it discretionary for the Judges? Thanks!

  • 34. Retired_Lawyer  |  May 31, 2014 at 7:15 am

    The Tenth and Fourth Circuits could rule at any time now. Speculating about when can be fun, but it can only be speculation.

  • 35. debater7474  |  May 31, 2014 at 8:05 am

    The later the fifth circuit rules, the better. It's better to not have the blinders on and to rest assured that there is a zero percent chance the fifth circuit rules in favor of marriage equality. Anyone who thinks they will rule in our favor either A) hasn't paid attention to their jurisprudence, B) is deluding themselves and not living in the world of reality, or C) all of the above. And when any court rules against us, especially a circuit court, make no mistake that it will look bad for us.

  • 36. Ragavendran  |  May 31, 2014 at 8:36 am

    I appreciate your opinion, but I don't get your inference about the people who don't agree with you.

  • 37. Tangley  |  May 31, 2014 at 9:18 am

    What don't you understand?

  • 38. Ragavendran  |  May 31, 2014 at 9:28 am

    I do agree with these parts:
    1) "The later the fifth circuit rules, the better."
    2) "And when any court rules against us, especially a circuit court, make no mistake that it will look bad for us."
    And I disagree with this part:
    3) "there is a zero percent chance the fifth circuit rules in favor of marriage equality" (emphasis mine)

    And then there is the following aspect of the comment that I don't understand, about the inference regarding the people who think that the Fifth Circuit will rule in our favor, especially part B:
    4) "Anyone who thinks they will rule in our favor either A) hasn't paid attention to their jurisprudence, B) is deluding themselves and not living in the world of reality, or C) all of the above."
    Specifically, I don't understand how this inference was made.

  • 39. debater7474  |  May 31, 2014 at 9:47 am

    It is stacked with the most socially conservative right wing judges in the country. Pigs will fly before the fifth circuit rules in favor of marriage equality. You remind me of those Republicans before the 2012 election who said things like, "The polls are skewed." It's important to be rational about this effort.

  • 40. Ragavendran  |  May 31, 2014 at 10:33 am

    Thanks, I get you now.

  • 41. JayJonson  |  May 31, 2014 at 11:11 am

    I agree that the Fifth Circuit is a disgrace. However, it is possible that a particular panel of the Fifth Circuit will issue the right decision. That happened in a Louisiana birth certificate case, involving the issuance of a birth certificate to adoptive Connecticut same-sex parents of a child born in Louisiana. When La. refused to issue a revised birth certificate, the couple sued. The three-judge panel of the Fifth Circuit issued a strong decision in favor of the couple. However, it was granted an en banc hearing, which then reversed the panel. That could well happen re the marriage question. There are a few reasonable judges on the Fifth Circuit, but they are few and far between, and an en banc review is almost certain to result in a defeat for us. That is why I hope that we will have several positive circuits ruling before the Fifth.

  • 42. debater7474  |  May 31, 2014 at 9:48 am

    If you want to understand the fifth circuit, read this article:

  • 43. Ragavendran  |  May 31, 2014 at 11:31 am

    While I am as appalled as you (and, probably, SCOTUS) about this particular case, I wouldn't consider this article as a means to "understand the fifth circuit", as you put it, because this article is about one particular panel of the fifth circuit, not the entire fifth circuit – I was expecting a more encompassing discussion covering all the judges when I clicked on your link. As Jay puts it above, there is a nonnegligible chance that we get a moderate panel and an initial decision in our favor. (Remember we got a panel with two republican appointees in the Fourth Circuit despite it being flooded with democratic appointees.) Of course, such a decision would almost certainly be reversed en banc, but that will take time and add more delay, which is good – I do agree that we have to delay a negative ruling as much as possible, and the fifth sitting en banc has the best shot at doing it. In fact, I'm surprised why there hasn't been a call for an initial hearing en banc in this case.

  • 44. Craig  |  May 31, 2014 at 11:52 am

    If we're so fearful of a negative outcome from the fifth circuit has the case been taken too early? or is it that the case has gone quicker than expected? I don't rule out a good ruling from the fifth circuit but it's the circuit that I'm the most fearful of.

  • 45. ebohlman  |  May 31, 2014 at 12:35 pm

    My prediction: the 5th will delay its ruling as long as possible, and then overturn the district court decision, but on the narrow grounds that the case didn't meet the requirements for a preliminary injunction. That way the SCOTUS would be unlikely to grant cert on an appeal of their ruling (since they hardly ever take preliminary injunction appeals) and they don't cause a circuit split if the rulings from the 10th and 4th are favorable. Thus they avoid doing anything that could result in a nationwide decision coming sooner rather than later, and reduce their chances of being the circuit whose ruling got overturned to get national ME. Basically stalling tactics and avoiding being caught in a position of responsibility when the shit hits the fan.

  • 46. SWB1987  |  May 31, 2014 at 1:21 pm

    But do we really think that SCOTUS is going to try and delay a nationwide decision? I mean at this point unless both the tenth and the fourth don't have favorable rulings SCOTUS must decide on these cases by next June at the latest

  • 47. TxLawyer  |  May 31, 2014 at 3:14 pm

    SCOTUS doesnt HAVE to do anything… certiorari is not mandatory with them. They could leave a circuit split in place.

  • 48. bythesea  |  May 31, 2014 at 3:24 pm

    True, but they almost certainly won't.

  • 49. ebohlman  |  May 31, 2014 at 4:40 pm

    Let me once again point out that about 10,000 cases are appealed to the SCOTUS every year and they grant cert on about 70 of them. Any of our cases are going to have a lot of competition; the SCOTUS, at least in the next term, is only going to take one of ours if they can't find 70 cases that they think are more important.

  • 50. Zack12  |  May 31, 2014 at 6:26 pm

    Sad to say but I have to agree with several others on here that expecting a positive ruling from the 5th circuit on gay marriage is a pipe dream.
    It is the most conservative court in the country and among the many gems that have come from this court include stating that a man whose's lawyer slept through his death penalty trial didn't deserve a new trial, that a rape victim had to cheer her rapist and repay the school district for the lawsuit from that, that driving 200-300 miles for an abortion isn't an undue burden.
    More to the point, many of these judges are members of the far right Federalist society, judges who think state's should basically be allowed to do whatever they want with no interference from the federal government and that the Constituition should be viewed as it was more then 200 years ago with no account for changes in society.
    Sorry but a positive ruling is NOT going to come from this court, period.

  • 51. Nyx  |  May 31, 2014 at 7:24 pm

    Ted Olson was a founding member of the Federalist Society.

  • 52. Ragavendran  |  June 1, 2014 at 8:36 am

    Wow, how much more plainly self-contradicting can one get:

  • 53. Jae  |  June 1, 2014 at 9:11 am

    Things are happening so fast I think they are baffled and are trying to save face or "soften" up. I think reality is hitting some of them and they aren't sure how to deal. Being in the public eye they are having to be careful how they put things along with keeping their voters somewhat happy. She left me more confused though.

  • 54. Richard Weatherwax  |  June 1, 2014 at 2:40 pm

    Nothing is surprising about her answers: She believes that same-sex marriage should be up to the state, and she would vote for a federal bill banning same-sex marriage. That is exactly the answers Republican voters want to hear.

  • 55. Zack12  |  June 1, 2014 at 3:00 pm

    The federal bill to ban marriage is dead at this point. They aren't going to get the 290 votes in the House nor the 67 Senate votes nor 37 states to agree to it anymore.

  • 56. davep  |  June 1, 2014 at 4:20 pm

    Especially since 19 states already have ME, with several more on the way. Unless we suddenly get a whole lot more than 50 states, the math doesn't add up.

  • 57. Jae  |  June 1, 2014 at 9:04 am

    Anyone know if there will be an answer on the NoM request on Monday?

  • 58. Retired_Lawyer  |  June 1, 2014 at 1:59 pm

    I do not know, but I would bet on two responses, one from the plaintiffs, and another from the Oregon Attorney General, with both responses in opposition.

  • 59. DaveM  |  June 2, 2014 at 7:36 am

    SCOTUS did not make mention of the application on its Order List today. They do sometimes release supplemental Order Lists on Fridays. You won't hear from them until then at the earliest, after the Thursday conference at which Kennedy will refer the stay application and responses to the whole court.

  • 60. Zack12  |  June 2, 2014 at 7:23 am

    On a different note, another bigot leaves the Democratic party for the GOP.
    Keep in mind this bigot helped write the state ban on same sex marriage and co-wrote the constitutional ban passed in 2005.
    Good riddance to bad rubbish.

  • 61. JimT  |  June 2, 2014 at 9:05 am

    During the late 90s I met Jan Pauls at a rally my impression then was that she was not a true Democrat.

  • 62. Zack12  |  June 2, 2014 at 12:22 pm

    She was a Blue Dog, and I'll say this, I'm not sad to see them go.

  • 63. TEXAS: Marriage Briefing &hellip  |  June 2, 2014 at 8:50 am

    […] Equality On Trial: The Fifth Circuit Court of Appeals has filed an order in DeLeon v. Perry, setting the briefing […]

  • 64. Federal Appeals Court Str&hellip  |  July 28, 2014 at 2:13 pm

    […] the marriage laws in Indiana and Wisconsin on August 26th. There are also appeals pending in the Fifth Circuit Court of Appeals dealing with Texas’s ban on same-sex marriage, and in the Ninth Circuit involving laws in […]

  • 65. Equality On TrialThis sum&hellip  |  August 7, 2014 at 1:22 am

    […] The opening brief in the challenge to Texas’ same-sex marriage ban, DeLeon v. Perry, was due July 9, but the state officials defending the ban sought and won an extension to July 16. The […]

Having technical problems? Visit our support page to report an issue!