What’s Next in Gay Marriage’s Legal Odyssey?
Thursday’s hearing in Denver marks the first time a gay marriage case has been heard by an appellate court since last year’s U.S. Supreme Court ruling that struck down the Defense of Marriage Act.
Gay rights activists have won eight lower court cases since then, and expectations are high that the nation’s highest court will eventually rule that gays can marry in every state. But there’s a lot that can happen before then.
The Supreme Court last year found that the 1996 Defense of Marriage Act that forbade the federal government from recognizing same-sex marriage improperly deprived gay couples of due process. That ruling came as polls showed a majority of Americans now support gay marriage. Lower court judges have repeatedly cited the Supreme Court ruling when striking down same-sex marriage bans. So far they have ruled against bans in Michigan, Oklahoma, Utah, Virginia and Texas and ordered Kentucky and Tennessee to recognize same-sex marriages from other states. A judge is due to order Ohio to do the same shortly. Gay marriage is legal in 17 states and the District of Columbia.
WHEN DOES THE ISSUE RETURN TO THE SUPREME COURT?
Many law professors say the Supreme Court will eventually take a gay marriage case after one or more appeals court rulings, but that won’t happen until 2015 at the earliest. And the high court is under no obligation to take up the issue. The three-judge panel of the 10th Circuit Court of Appeals in Denver is only the first of five circuits hearing appeals of all those lower court gay marriage rulings. It is not expected to issue its ruling for several months. In any of the appellate cases, the losing party can appeal directly to the Supreme Court, or first ask for the entire appellate court to review the ruling in what is called an en banc hearing. It’s unclear which case would reach the high court first.