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The fight for marriage equality has entered into a new phase garnering a different perspective with respect to legal strategy. Pennsylvania joined the ranks (becoming the 19th state) on May 20 when U.S. District Judge John E. Jones III of the Middle District of Pennsylvania declared that Pennsylvania’s version of the Defense of Marriage Act was unconstitutional, ruling in favor of the plaintiffs in Whitewood v. Wolf, 2014 U.S. Dist. LEXIS 68937 (May 20, 2014). The elation was palpable in Philadelphia, as hundreds of LGBT individuals and their allies gathered on the steps of City Hall to celebrate no longer being second-class citizens in Pennsylvania, alongside the American Civil Liberties Union, the Whitewood legal team of Hangley Aronchick Segal Pudlin & Schiller and several of the plaintiffs.
Of the same-sex marriage rulings that occurred in other states so far this year—Utah, Oklahoma, Texas, Virginia, Michigan, Oregon, Arkansas and Idaho—seven (except for Oregon) had their rulings stayed pending appeal, and thus those cases have been kicked up to their respective circuit courts. Unlike most other marriage equality cases, Pennsylvania’s decision was not appealed.
While I am overjoyed at the momentous marriage equality ruling, I cannot help but voice what is likely to be an unpopular opinion: An appeal of Whitewood, while damaging to LGBT Pennsylvanians for the duration of the stay, would have helped the national movement of marriage equality.
The stayed rulings in the seven aforementioned states make up five of the 11 numbered U.S. circuit courts of appeals and comprise 26 states. Given the consistency of recent court decisions and by the U.S. Supreme Court in its ruling in United States v. Windsor, 570 U.S. 12 (2013), many predict that some, if not most, of the circuits will uphold the lower court rulings. As such, within just a few months we will likely see rulings declaring state laws banning LGBT couples from marrying are unconstitutional and those decisions will have reverberated far beyond the “state of origin” of the case; they will resonate across regions. Unfortunately, enforcement of those rulings will be on pause pending the Supreme Court’s review of one or more of them and may force the Supreme Court to revisit marriage equality sooner than it wished—which is probably never. The circuit mostly likely to decide against same-sex marriage is the U.S. Court of Appeals for the Fifth Circuit. That circuit includes Texas, which is up for appeal, as well as Mississippi and Louisiana, and the court is largely made up of conservative judges.
If two or more circuits in the U.S. court of appeals system have different interpretations of federal law, a circuit split exists. The concept of a circuit split in an issue such as this is crucial to the Supreme Court’s decision to grant certiorari. In that instance, the Supreme Court may hear an appeal to clarify federal law or to settle the circuit split by making a ruling that is binding nationwide. Circuit splits can also influence lower courts, particularly where a trial or appellate court in a circuit is considering an issue that is new to that circuit (an issue of first impression and other circuits have split on that issue). Courts considering an issue of first impression will generally consider the competing decisions by other circuits on that issue, as those decisions are persuasive authority.
With that said, the Supreme Court constantly surprises us, so if the Supreme Court demurs, the rulings in the circuits that have already decided bans preventing same-sex couples to marry are unconstitutional will become law throughout those circuits, essentially requiring many more states to join the 19 that have already authorized same-sex marriage.
This brings us back to Pennsylvania, which sits in the Third Circuit. The Third Circuit is composed of Delaware, New Jersey and Pennsylvania and it also has appellate jurisdiction over the District Court of the Virgin Islands, which, in spite of the name, is a territorial court and belongs to no federal judicial district. Since every state in the Third Circuit already has marriage equality, an appeal would not have the effect of adding more states to the marriage equality list but it could have an impact down the road if there is a circuit split when/if the Supreme Court takes this issue up again. Moreover, given the potential wider impact of circuit decisions, if more circuits take up the issue, then it adds inherent pressure on the Supreme Court to address this head-on rather than punting it as it did last year, when it allowed a decision overruling California’s Prop 8 ban on same-sex marriage to stand on grounds that it did not apply to other states in the Ninth Circuit.
The Supreme Court’s term runs from October to June, so a national victory is still in the distance. With a high likelihood that at least one circuit court, potentially two, will decide against state limits by fall of this year, the Supreme Court could hear a case for a decision by June 2015. I’m hoping for a historical trifecta—yet another June 26 decision but this time declaring that all bans against same-sex marriage nationwide are unconstitutional. This would make three LGBT-specific Supreme Court decisions coming down on the same day—Lawrence v. Texas, 539 U.S. 558 (2003), which struck down sodomy laws, Windsor and the presently unnamed “future-case-to-be.” One can dream, right? With that dream still on hold, I again want to commend Jones on a beautifully crafted and powerfully written opinion acknowledging LGBT individuals as exactly what they are—the same as everyone else.