Justices To Consider On Jan. 9 Whether To Hear Same-Sex Marriage Cases, Legal Group Says

WASHINGTON — The Supreme Court is set to consider on Jan. 9 whether it will hear appeals of same-sex couples' marriage challenges in cases out of five states, one of the legal teams representing the couples told BuzzFeed News on Monday.

"The Tanco [Tennessee case] petition will be considered at the Court's January 9 conference, along with ... petitions filed by the plaintiffs in Michigan, Ohio, Kentucky, and Louisiana," National Center for Lesbian Rights spokesperson Erik Olvera told BuzzFeed News on Monday afternoon.

The plaintiffs and marriage equality advocates alike hope the petitions will provide the Supreme Court with the chance to take a case to resolve the issue nationally with a ruling that would apply across the country.

Although the justices denied petitions filed earlier in the year from other states, all were in cases in which the lower court had struck down the bans — and before there was a "circuit split," a disagreement among the federal appeals court on the issue. All five petitions before the court now come from decisions upholding the various states' bans.

In November, the 6th Circuit Court of Appeals, in a 2-1 decision, reversed the four district courts to have heard the cases out of Kentucky, Michigan, Ohio, and Tennessee — sending the plaintiffs in the cases from all four states to the Supreme Court seeking an appeal.

NCLR is among the lawyers representing the same-sex couple plaintiffs challenging Tennessee's ban on recognition on same-sex couples' marriages, and Olvera said the news about the Jan. 9 conference came from the Supreme Court clerk's office.

The justices need to decide in the next month whether they will hear a case addressing same-sex couples' marriage rights this term — meaning the case would be heard this spring and a decision would be expected by late June.

If the justices don't accept one of the cases for review by mid-January — even if they accept a case later this winter or spring — then it is expected the case would not be heard until the Supreme Court's next term, which begins in October 2015. If they deny the petitions out of the 6th Circuit, on the other hand, the lower court ruling would stand and the bans would remain in effect.

Although it was expected the petitions would be considered at the Jan. 9 conference given the timelines for such petitions at the court, four of the five cases are yet to be distributed to the justices — making Olvera's comments the first known confirmation from the court that they all would be considered on Jan. 9.

The Supreme Court previously noted on its docket that the Louisiana case had been distributed to be considered at the Jan. 9 conference. To be considered on Jan. 9, the other cases are expected to be distributed to the justices on Tuesday.

The same-sex couples challenging marriage bans in Kentucky and Tennessee on Monday filed their reply briefs on Monday, joining the reply brief filed on Sunday from the plaintiffs in the Ohio case. The reply brief is the plaintiffs' last chance to tell the justices why they should take their case.

Kentucky, Michigan, and Ohio officials agreed that the Supreme Court should take a case and resolve the issue nationally; only Tennessee officials opposed Supreme Court review.

The American Civil Liberties Union and Jeffrey Fisher, from Stanford Law School, joined the Kentucky lawyers, led by Daniel Canon, in Monday's reply brief, arguing, "For petitioners here – and for lesbian and gay couples and families across both the Sixth Circuit and the country – the harm and confusion that the circuit split has caused calls out for immediate review."

In the Tennessee case, and responding to the state's argument against Supreme Court review, the lawyers, led by Douglas Hallward-Driemeier of Ropes & Gray in D.C., noted, "Apart from noting that the Court is not 'compelled' to grant review of a circuit split, respondents offer no reason why the Court should not now take up the issue." Ropes & Gray is joined by NCLR and local counsel that includes William Harbison and Abby Rubenfeld.

In Ohio, the ACLU and Lambda Legal are supporting Alphonse Gerhardstein's reply, in which they argue that, in addition to taking up the case in order to address the marriage recognition question, they also should take up the question of whether the state can refuse to recognize the adoption of a child to a same-sex couple granted by another state.

The four petitions seeking a writ of certiorari, the technical way the justices take a case, out of the 6th Circuit will be joining the petition from a case out of Louisiana — where the plaintiff same-sex couples, after losing at the trial court, are asking the justices to hear the case before the appeals court weighs in on the matter. Louisiana has supported Supreme Court review of the issue.

On Jan. 9, incidentally, the 5th Circuit Court of Appeals will be hearing the appeal of the Louisiana marriage case, along with cases challenging similar bans in Mississippi and Texas.