Texas, Louisiana same-sex marriage cases linked

Two conflicting federal trial court rulings on same-sex marriage — one in Texas in favor, one in Louisiana against — will be heard by the same panel of appellate judges, but in separate hearings, the U.S. Court of Appeals for the Fifth Circuit ordered on Thursday. The order moves along the constitutional controversy in a federal appeals court that has not yet ruled on it.

The members of the three-judge panel have not yet been named for the Texas case. But, given the overall makeup of the Fifth Circuit, it is widely assumed that a state’s ban on same-sex marriage will have a strong chance of being upheld in that circuit. So far, no federal appeals court has sustained a ban on such marriages. If a split does develop, that could enhance the prospects that the Supreme Court would take on the issue — if it has not yet done so by the time further appeals court rulings emerge. The Court takes its first look at new marriage cases next Monday, at its private Conference.

The Texas case, Deleon v. Perry, is at the Fifth Circuit on an appeal by state officials, and briefing will be completed by October 10. The Louisiana case, Robicheaux v. Caldwell, has been appealed by same-sex couples, but state officials urged the Fifth Circuit to expedite the briefing schedule so that it could be ready for review by the panel that will handle the Texas dispute.

The Fifth Circuit has not yet scheduled a hearing on the Texas case, but it now appears likely that a hearing will take place in November. Louisiana officials, in a request supported by lawyers for same-sex couples, suggested a briefing schedule in that case which would be completed by November 7. In a separate order Thursday, the Fifth Circuit accepted that schedule.

The two sides in that case did not ask that the case be joined with the Texas case, so separate decisions are likely.

In urging that the schedule for the Louisiana review be moved up, officials of that state said that, without an expedited schedule, their case would be controlled by the outcome in the Texas case, without the two sides in Louisiana having had a chance to make their own arguments.

Decisions are now awaited in same-sex marriage cases in the Sixth and Ninth Circuits. So far, the Fourth, Seventh, and Tenth Circuits have struck down bans in five states; those are the rulings that have so far reached the Supreme Court.

In association with Bloomberg Law

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