Supreme Court Inches Closer to Marriage Decision

The U.S. Supreme Court might hear a marriage equality case from Louisiana, but Gov. Butch Otter of Idaho says the justices should wait for his state's arguments before making any decision on the issue.

The Louisiana case, Robicheaux v. George, is among those that the justices will discuss in their January 9 conference, one of the meetings where they decide which cases to hear, Freedom to Marry reports. It is one of five cases in which parties have petitioned the high court for review, but the first one to be added to the conference schedule. The petition was distributed to the justices today.

Any of the four other cases -- from Kentucky, Michigan, Ohio, and Tennessee -- could be added to the schedule for January 9, or for subsequent conferences January 16 and 23. After discussing cases in conferences, the justices decide whether to take them up.

In the Kentucky, Michigan, Ohio, and Tennessee cases, the U.S. Court of Appeals for the Sixth Circuit upheld state bans on same-sex marriage, making it the first federal appellate court to do so. The Louisiana case, in which a district judge upheld the ban, has not been in an appellate court yet -- the Fifth Circuit will hear oral arguments the same day as the Supreme Court conference -- but the plaintiffs petitioned directly to the high court as well. Louisiana officials have also urged the Supreme Court to take the case.

"We are grateful that the Supreme Court will be considering our case and are hopeful that they will see the importance of taking up this issue sooner rather than later," plaintiff Derek Penton-Robicheaux told The New Civil Rights Movement today. "As fate would have it, we will also be in oral arguments before the Fifth Circuit Court of Appeals that same morning. What exciting way to start the new year."

Meanwhile, this week Idaho Gov. Otter and his attorneys filed a brief recommending that the high court wait for Idaho's case before making any decision about marriage equality, reports The Spokesman-Review of Spokane, Wash. In a friend of the court brief filed in conjunction with all the cases seeking Supreme Court review, they contend that Idaho's case is the "best vehicle" for resolving the issue.

The paper sums up their reasoning as follows: "Idaho's [case] includes both the question of in-state marriages and recognition of out-of-state marriages; it would test the 9th U.S. Circuit Court of Appeals' application of a heightened standard of scrutiny for discrimination based on sexual orientation; it brings up religious liberty issues; and Idaho officials, unlike those in many states, have mounted a vigorous defense of their ban on gay marriage."

It's questionable how vigorous the defense actually was, as a U.S. district court struck down the ban in May and three-judge panel of the Ninth Circuit unanimously affirmed that ruling October 7. Same-sex couples have been marrying in the state since October. Otter has petitioned for a rehearing by a larger panel of Ninth Circuit judges, and if that is not granted in the next few days, the state will petition to the Supreme Court, Otter and his lawyers said in the brief.

Deborah Ferguson, an attorney who represented the Idaho couples seeking marriage equality, said she and her clients would urge the Supreme Court not to take the case. The Ninth Circuit "correctly decided the marriage equality issue," she told The Spokesman-Review, adding, "The Supreme Court has previously denied petitions where state marriage bans have been struck down."