5th Circuit to hear arguments in Texas, Louisiana marriage cases on January 9; Louisiana plaintiffs ask Supreme Court to take up case
November 20, 2014
LGBT Legal Cases Marriage equality Marriage Equality Trials
The Fifth Circuit Court of Appeals, based in New Orleans, has scheduled arguments in challenges to same-sex marriage bans from Texas and Louisiana for January 9. Earlier, the court had suggested arguments would take place that week, but they hadn’t set a particular date.
The Texas case has been in the appeals court since March; the Louisiana case only recently reached the court.
The district court judge hearing the Louisiana case upheld the ban, while the one hearing the Texas case struck down that state’s ban.
It’s not clear if arguments will be heard before or after the Supreme Court has a chance to decide whether to review challenges from the Sixth Circuit Court of Appeals. It’s possible the Fifth Circuit appeals would be placed on hold if the Supreme Court does take up the issue of same-sex marriage.
UPDATE: Plaintiffs in the Louisiana same-sex marriage case, represented by Lambda Legal, filed a petition in the Supreme Court asking them to take up the case before judgment in the appeals court. Citing “the harms inflicted on same-sex families in states from the Canadian border to the Gulf of Mexico,” the petition argues that there is a “pressing need for this Court’s intervention to address this persisting discrimination against same-sex families.”
Thanks to Equality Case Files for these filings
74 Comments
1.
debater7474 | November 20, 2014 at 2:42 pm
It's a hail mary. There are about one million reasons why they would take 6th circuit cases over the Louisiana one.
2.
Zack12 | November 20, 2014 at 3:06 pm
I guess they figure they don't need a negative ruling from the 5th but there is no way SCOTUS would hear them without going through the 5th first.
3.
JayJonson | November 20, 2014 at 4:48 pm
The Supreme Court will do what it wants to do. There may be something in Feldman's ruling that some justice wants to particularly strike down or there may be a particular aspect of the Louisiana case that strikes the interest of a justice.
SCOTUS can grant cert to cases that have not been heard by a Circuit Court of Appeals. The Louisiana lawyers are probably just hedging their bets, but stranger things have happened.
4.
KACinSTL | November 20, 2014 at 6:39 pm
Completely off topic but every time I see Feldman mentioned I think of Jerry Seinfelds bizarro alter-ego from Seinfeld
5.
guitaristbl | November 20, 2014 at 2:55 pm
January 9th is the date of the first january conference for SCOTUS as well, the first conference where they will have the marriage cases from the 6th before them most likely. These will be some tough oral arguments I suspect but I seriously doubt they will have time to issue a decision before SCOTUS takes on a case and rules on it.
6.
nicolas1446 | November 20, 2014 at 4:34 pm
Is there a conference in December? If there is, is there a possibility of meeting that time frame.
7.
sfbob | November 20, 2014 at 4:54 pm
There are conferences on 12/5 and 12/12.
8.
SteveThomas1 | November 20, 2014 at 4:55 pm
There are conferences on Dec. 5 and 12. However, the respondents have a month following the filing of the petition to respond, and then the petitioners have an additional two weeks to reply to the response. It's unlikely that the case will be distributed to the Justices before January.
9.
nicolas1446 | November 20, 2014 at 7:00 pm
What is the respondents reply say next week or in two weeks (they did say the were not opposed to SCOTUS review) could the petitioners then reply in a matter of days? That would be before Dec.12. Would that make it in time?
And about the January conference. Do all cases granted cert in January get scheduled for oral arguments that term?
10.
SteveThomas1 | November 20, 2014 at 8:26 pm
In general, the briefs "in opposition" are the first opportunity for lawyers for the respondents to try to frame their case to the Supreme Court, which takes time and effort. The briefs in opposition to the cert. petition are not always opposed to the grant of cert. by the Supreme Court (for instance all the parties wanted Supreme Court review for the marriage equality cases granted cert. in the 2012 term). So while the lawyers could conceivably file a short, one paragraph reply saying in effect merely "ditto", it's highly, highly unlikely they would do so. So don't count on the respondents' helping to speed the process along.
Similarly, the lawyers for the petitioners will almost certainly want to present a rebuttal case against the respondents' brief. They are undoubtedly already working on it, but they won't know precisely what to put in and what to leave out until they actually see the respondents' briefs.
Cases are distributed to the Justices once all of the papers to be filed are submitted, and are not up for consideration until that's been done. And once the cases are distributed, the Justices need time to read and consider them, along with all of the other cert. petitions they get. It's not at all unusual for such petitions to be held over from one conference to another, sometimes for months at a time. Thus, in the regular course of business, a case ready for distribution by the January conferences might not be acted upon (granting or denying cert.) in January, or even February, or even March, etc.
The marriage equality cases are, of course, high profile cases, and there's a good chance that the Justices are already paying attention to their progress through the process, but until they actually act, it is impossible to predict with any certainty how they will act.
The Justices are usually still filling out their argument calendars for this term in January. A certain period of time is usually required from the date cert. is granted until the date of oral argument, in order to allow for the parties' briefs, and for any amicus briefs, to be filed (and digested by the Justices). Thus, in general the January conferences are the last reliable chance to get a case considered in the current term.
The Court tries really hard to get all of the cases argued in the current term decided before they recess for the summer, generally the last day or so of June. Sometimes, however, they will hold an argued case over to the next term, generally requiring that it be reargued. (This happened with Brown v. Board of Ed., for example.)
There is one fundamental, iron-clad rule: the Supreme Court can do whatever the hell it decides to do. Thus, all of this talk about what "usually" or "generally" happens is proceeding from what the common practice is, but five Justices can vary the procedure when they want. Thus, anyone who predicts with anything like assurance or certainty precisely what the Court will actually do is probably talking out of his or her hat. We'll know when they do something — everything else is speculation.
11.
nicolas1446 | November 21, 2014 at 9:04 am
First, great detailed answer. Second, what I get from that, at least how I see it, is that it's very unlikely that a same sex marriage case will be heard this term. It just seems like all the necessary filings would have to be rushed and then the justices would not have much time to discuss whether to grant cert.
12.
BenG1980 | November 21, 2014 at 9:26 am
I don't think that's at all what Steve said. Rather, I think his point is that we probably won't hear anything from the Court until January when they very likely will grant cert to one or more of the Sixth Circuit cases (probably DeBoer).
13.
SteveThomas1 | November 21, 2014 at 9:35 am
Ben is correct. I would not be at all surprised if the Supreme Court granted cert. in January, heard oral arguments later in the term and handed down a decision toward the end of June 2015.
On the other hand, I also would not be at all surprised if the Supreme Court delayed a decision on the relevant cert. petitions until too late to hear the case this term.
Until it happens, we won't know. Of course, once it does happen, we will no longer have to speculate. (And anyone who bet on one or the other of the possibilities will either be able to crow that they were right, or lick their prognosticating wounds.)
14.
nicolas1446 | November 21, 2014 at 12:44 pm
Well I just think hoping the court grants cert in January is wishful thinking. I just don't want to be disappointed if I find out the case won't be decided until next term. I hope the justices are ready and eager to decide the issue and not waiting for more time so that more people can get used to the idea of same sex marriage.
15.
SteveThomas1 | November 21, 2014 at 12:55 pm
I'm hoping that the Court will grant cert. in January. I'm just not counting on it, and won't be thinking the worst if it doesn't happen.
16.
JayJonson | November 22, 2014 at 6:22 am
I will be VERY disappointed if the Court does not grant cert in January. I am tired of being "half married" in the eyes of government–our marriage recognized by the feds, but scorned and derided by the state.
I am also very worried by the possibility of delay. We are all mortal, including Supreme Court justices. As I keep pointing out, our SCOTUS majority is very precarious. Should something cause Justice Kennedy, Ginsburg, Breyer, Sotomayor, or Kagan to vacate their seat, our 5-4 majority striking down the Sixth Circuit ruling turns into a 4-4 ruling upholding the Sixth Circuit decision.
17.
Zack12 | November 22, 2014 at 6:24 am
Indeed, it needs to be done this year, period.
18.
Raga | November 21, 2014 at 1:06 pm
Here's the case distribution schedule. It tells you precisely what the deadlines are for filings to come in so that they can be distributed in time for the corresponding conference. So, for example, for DeBoer to be distributed for the December 12 conference, all filings should be complete by November 25 which is near-impossible now – Michigan would have to respond and then the Plaintiffs should reply or waive a reply by next Tuesday!
http://www.supremecourt.gov/casedistribution/case…
19.
RobW303 | November 20, 2014 at 4:58 pm
My guess is that they want to get the Louisiana case on a different and later schedule, since then the negative ruling from LA would play a much smaller role in the TX decision, which we might have a chance of winning if heard independently. If so, the TX decision would then set circuit precedent and force an overturning of the LA ruling. Yeah, one can dream.
20.
Rick55845 | November 20, 2014 at 3:03 pm
Scottie – Access to this site yesterday and especially today has been very slow, hanging for minutes at a time when clicking a link or hitting refresh. Sometimes I get server errors. The various "is it down" web sites often report that this web site is down.
I've experienced it both at work and at home, so it seems unlikely that the problem is with my internet connection. This has been happening for a while now, but it's getting progressively worse. Could you investigate the reason for these delays and try to get it fixed? Please. 🙂
21.
hopalongcassidy | November 20, 2014 at 3:09 pm
I wonder if some GOTP jerks are working a DOS attack….same thing here.
22.
Rick55845 | November 20, 2014 at 3:14 pm
That crossed my mind too. I've seen an HTTP error 503 several times. But that can also be due to other problems, such as the web server crashing. The access logs should show a DDOS attack, if that is indeed the problem.
23.
sfbob | November 20, 2014 at 3:25 pm
I'm not sure what the deal is. At one point last night when I couldn't access this site, as Courage Campaign is the parent for EoT, I decided to check there to see if there was any information there. That one was similarly inaccessible.
24.
Elihu_Bystander | November 20, 2014 at 3:23 pm
My Three Rivers CA access is dial-up so mine is always slow. No unusual problems today. But there was a period of no access yesterday.
25.
EllieInMalibu | November 20, 2014 at 4:05 pm
So glad you mentioned this. I thought I was being throttled – and not the good kind!
26.
FredDorner | November 20, 2014 at 4:10 pm
I've had the same problem yesterday and today – no access to the site and a message of "site not available."
27.
Jaesun100 | November 20, 2014 at 4:21 pm
Yup spotty outages today here on my iphone ….I thought it was my carrier just having connection issues …. Seems to be okay now on my iPad
28.
RnL2008 | November 20, 2014 at 4:26 pm
I have had the same issue……annoying as hell!!!
29.
DeadHead | November 20, 2014 at 6:01 pm
Its been happening to me as well over the past several days only on EoT, slow connections can't connect page does not load up.
30.
Raga | November 20, 2014 at 6:06 pm
Same here for me in Boulder, CO. I'm connected directly into the University of Colorado's 100Mbps T1 line, so I was sure the site was down or being slow.
31.
Dr. Z | November 20, 2014 at 6:34 pm
Likewise, much slower than usual here; no comparable delays elsewhere on the net.
32.
weaverbear | November 20, 2014 at 7:03 pm
Finally late this afternoon, it was normal swift access for me, but this morning? Forget it!
33.
SeattleRobin | November 20, 2014 at 9:19 pm
I've had periods of time I couldn't access the site over the last two or three days also. I was assuming that with so much news this week that the site was just being overwhelmed with traffic. Maybe Scottie will let us know.
.
34.
Fortguy | November 20, 2014 at 3:24 pm
This puts pressure on the Mississippi judge to rule on the preliminary injunction soon to get his case squeezed into the January 9 date.
35.
Raga | November 20, 2014 at 5:44 pm
We're expecting him to rule very soon. Possibly tomorrow afternoon/evening.
36.
Jaesun100 | November 20, 2014 at 3:33 pm
Anyone care to gander the chances the Supreme Court takes it without the circuit court hearing it first ?
Now that we know RGB feels the court should be in a rush now that there's a split… I just wonder if those 4 liberals on the court have some tricks up their sleeves to address the issue on an "super expedited " schedule ….
37.
debater7474 | November 20, 2014 at 3:40 pm
FDR is more likely to rise from his grave and assume a fifth term than the supreme court is likely to take the Louisiana case over the Michigan one.
38.
Jaesun100 | November 20, 2014 at 3:47 pm
Well when they deny it I hope they say why …..probably something like go to the circuit court first….them denying to hear a loss will give the Anti-Side new firepower…..that is if they give a vague denial…
becoming beyond predictable at this point http://www.lgbtqnation.com/2014/11/idaho-governor…
39.
RnL2008 | November 20, 2014 at 4:30 pm
These ANTI-GAY Bigots just DON'T get it….it DOESN'T matter what the 6th Circuit ruled…..Idaho is governed by the 9th, Kansas by the 10th and South Carolina by the 4th…….those Circuit rulings are NOW binding precedent and these States NEED to move on to other more pressing issues!!!
40.
Jaesun100 | November 20, 2014 at 4:51 pm
Yeah he's just like ignore the other 3 circuits…….I admit it is creative but not in a good way…
His ugly has fell out he needs to put it back in…..
41.
RnL2008 | November 20, 2014 at 4:53 pm
Creative, yes……going to win, NOT likely…just more delays!!!
42.
SeattleRobin | November 20, 2014 at 9:24 pm
That's a sad and beaten looking Otter in the photo.
43.
Raga | November 20, 2014 at 10:15 pm
Otter Beating: http://www.youtube.com/watch?v=hrUICg_Cvy4
(No Otters were actually harmed in the making of the video – I hope.)
And this is a sad otter: http://farm4.static.flickr.com/3500/3230272764_6c…
44.
RemC_Chicago | November 21, 2014 at 2:07 pm
Looking forward to seeing him looker much sadder and much more beaten. Political Otters are like gongs.
45.
JayJonson | November 20, 2014 at 4:52 pm
Stranger things have happened. SCOTUS has no obligation to wait until a case has been argued and ruled on by an appellate court. True, it is rare that they grant cert in such circumstances, but they have done so before and could do so now.
Lambda Legal is very experienced. I don't think they would be wasting resources if they did not think that there was a possibility that SCOTUS would grant cert in Robicheaux.
46.
Brad_1 | November 20, 2014 at 8:03 pm
Hmmm. That's a tough choice. I want the Michigan case to reach the high court, but I also will vote for FDR if/when he runs for a fifth term.
47.
SeattleRobin | November 20, 2014 at 9:25 pm
LOL!
48.
guitaristbl | November 20, 2014 at 4:27 pm
Btw how did the hearing in federal court in Arkansas went ? Any reports from there ?
49.
RemC_Chicago | November 21, 2014 at 7:29 am
See if this helps:
http://www.arktimes.com/ArkansasBlog/archives/201…
50.
BillinNO | November 20, 2014 at 5:19 pm
You know, the loss in Federal District Court here hurt- I can't say
it didn't. And I have been steeling myself for the uncertainties of the Fifth Circuit Court of Appeals- but this petition today kind of epitomizes how we feel in Louisiana- our constitutional rights are being denied, and every day it continues is intolerable. I think this petition for certiorari before judgement is a brilliant stroke. And i also think it accurately telegraphs our estimation of the antediluvian mindset that we know prevails on the Appeals Bench here.
51.
Jaesun100 | November 20, 2014 at 5:49 pm
I think it would have been more brilliant if we hadn't lost at the 6th….and this was the only losing case
52.
JayJonson | November 21, 2014 at 6:46 am
BillinNO, you eloquently express our disappointment in Feldman's stupid ruling. However, we won in state court. Do you know whether the state case has been scheduled for argument at the Louisiana Supreme Court and when? It would be delicious (though unlikely) if marriage equality came to Louisiana via its notoriously inept state court system.
53.
FredDorner | November 21, 2014 at 11:16 am
"You know, the loss in Federal District Court here hurt – I can't say it didn't."
I think what both Feldman's bizarre ruling and the 6th circuit ruling reveal is that the bigots have nothing, literally no legitimate argument whatsoever. And seriously, what kind of moron judge misquotes and misconstrues the 14th Amendment?
54.
guitaristbl | November 20, 2014 at 5:24 pm
On an irrelevant note, I really liked Obama's speech on immigration. Basically throwing the glove to republicans in congress I think to do something finally.
55.
Jaesun100 | November 20, 2014 at 5:36 pm
Could backfire on him what if they actually do?
Now that ME is almost off the table the Republicans can move on immigration become the hero of the house and senate and steal the Latino vote from dems in 2016…..
The speech was more religious based than I like.
IMO O's strategy is to scare/energize the base into voting dem in fear the next Republican President would undo it…. That is what I was referring to backfiring.
56.
guitaristbl | November 21, 2014 at 9:46 am
Republicans will either act on immigration reform in a way that may isolate some core voters of their base (and not certain to get them the majority of the hispanic vote still) or leave it aside and let Obama go with the executive action as he will and let the "big tent" scenario collapse. The only thing I am sure is that Ted Cruz and the rest of the fundies will not be happy with immigration reform and it may even expose the internal, big divide in the GOP.
57.
Raga | November 20, 2014 at 5:57 pm
The move for cert before judgment could incentivize the Fifth Circuit to expedite the ruling. Recall that both Edie Windsor (July 16) and United States (Sep 11) petitioned for cert before judgment in the Windsor case. The Second Circuit heard oral argument on September 27 and entered judgment just three weeks later, on October 18. The Supreme Court granted cert to the petition for cert before judgment filed by United States on December 7 (admittedly, after judgment).
58.
Jaesun100 | November 20, 2014 at 6:35 pm
I like that! let's get er done by March.
59.
Raga | November 20, 2014 at 6:12 pm
A small report of the federal hearing this afternoon in Arkansas. The Plaintiffs in the two cases (state and federal) shared the same lawyers – Wagoner and Maples argued before the federal judge as well. However, the lawyer from the Attorney General's office was different in the two cases.
This is a bad report, because it doesn't say anything about the judge's questioning and how she may rule: http://swtimes.com/news/state-news/federal-judge-…
Anyone find a better report?
UPDATE: Okay, the judge really didn't say anything – no comments or questions. Doesn't want to tip her hand, does she? Here's a better report: http://www.arktimes.com/ArkansasBlog/archives/201…
60.
jdw_karasu | November 21, 2014 at 10:39 am
I think we generally know how she's going to rule, barring something trumping her from above.
It seems odd to let them go for 2 hours without question or prompting, since they likely covered the same ground as the pleadings. Interesting style…
61. ways to smoke weed&hellip | November 20, 2014 at 6:12 pm
ways to smoke weed
Equality On Trial5th Circuit to hear arguments in Texas, Louisiana marriage cases on January 9; Louisiana plaintiffs ask Supreme Court to take up case » Equality On Trial
62.
Raga | November 20, 2014 at 6:16 pm
Finally! ACLU is amending their lawsuit to force the Kansas state agencies to comply:
http://www.kansas.com/news/politics-government/ar…
“They’ve (the state) now made it absolutely clear … they’re going to fight for every inch of ground, they’re going to make us fight for every inch of ground on this,” Bonney said. “And there’s no chance they’re going to concede defeat on this.”
63.
Rick55845 | November 20, 2014 at 7:32 pm
Good news! Thanks for this intel, R.
64.
RnL2008 | November 20, 2014 at 9:08 pm
Well, the Pastor who stated that the people are behind the Governor and AG for defending this UNCONSTITUTIONAL Amendment does NOT truly speak for the majority I imagine and I WOULDN'T be very happy if the Stated opted to use my hard earned tax money to defend something they know they are going to lose…….even if SCOTUS was to grant these States a stay pending the appeals from the 6th circuit ruling…….when all is said and done….SCOTUS is going more than likely overturn the remaining bans and Marriage Equality will be taking place in ALL 50 States……..like I've stated….Stupid just CAN'T be fixed in some folks!!!
65.
RemC_Chicago | November 21, 2014 at 7:36 am
I made a comment on the newspaper article in response to the pastor's remarks, Rose. Maybe I'm pig-headed about this, but I believe that it's important to be visible and verbal in our objections, and not remain silent or only speak among ourselves. I did the same in the article about the MT civil servant being allowed to refuse to provide a license based on religious grounds. The supervisor's reasoning was that it was okay since there are 20 other people to handle the issuance. But it's not ever okay. Never mind the inconsistency of the religious objections, would any sane person think it would be okay for one of these civil servants to object to a license to a Muslim or Jewish couple due to religious beliefs? I hope the answer to that question is "no."
66.
MichaelGrabow | November 21, 2014 at 6:10 am
I sincerely believe these people in MT are idiots.
http://www.ktvq.com/news/clerk-opts-out-of-issuin…
67.
RemC_Chicago | November 21, 2014 at 7:37 am
Not merely idiots, but also dangerous.
68.
Wolf of Raging Fires | November 21, 2014 at 12:27 pm
Nothing worse than dangerous idiots
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