WASHINGTON — Married same-sex couples and, in two instances, the widowers of men who died asked the Supreme Court on Friday to hear their appeal of a recent appeals court ruling upholding Ohio's ban on recognizing their marriages, which were granted in other states.
"These cases are about love, from birth to death," the lawyers for the plaintiffs write, in setting up the case. "Ohio does not contest the validity of their out-of-state marriages; it simply refuses to recognize them," they later note.
The lawyers, which include the ACLU and Lambda Legal and are led by longtime Ohio advocate Alphonse Gerhardstein, filed the petition for a writ of certiorari on Friday, asking the court to take the case and reverse last week's decision by the 6th Circuit Court of Appeals upholding Ohio's 2004 state and constitutional amendment barring recognition of same-sex couples' marriages.
Although the justices earlier this fall denied requests to hear appeals in several marriage cases, at least one justice has said that could change if a circuit split developed — if appeals courts reached differing conclusions on the issue — which they now have. At least two justices — Antonin Scalia and Clarence Thomas — apparently wanted the court to take the cases even without a circuit split.
The Ohio litigation — which itself is actually two cases — is one of four cases expected to hit the Supreme Court on Friday or Monday, according to lawyers in the cases.
Two of the cases — Ohio and Tennessee — only seek recognition of same-sex couples' marriages conducted elsewhere, while the Kentucky and Michigan cases seeks to order the states to actually grant marriage licenses to same-sex couples. As suc
Lawyers in the Tennessee marriage recognition case are expected to file a similar petition with the court on Friday. Lawyers for plaintiffs in marriage cases out of Michigan and Kentucky are expected to file their petitions with the court on Friday or Monday as well.
The lawyers are moving the cases forward as quickly as possibly — with all four sets of lawyers agreeing to bypass a chance to ask the full 6th Circuit to rehear the case — in an attempt to have the Supreme Court accept the case for review in its current term, which would mean a decision would be expected by June 2015.
The Tennessee plaintiffs have filed their petition for a writ of certiorari with the Supreme Court, making it the second filing out of the 6th Circuit.
The couples are asking the justices to hear their marriage recognition case, an appeal from last week's 6th Circuit decision upholding Tennessee's ban on such recognition.
In addition to the legal team below — which included the National Center for Lesbian Rights, William Harbison, longtime LGBT rights lawyer Abby Rubenfeld and other Tennessee lawyers — the counsel of record in today's filing was Douglas Hallward-Driemeier, a partner at Ropes & Gray in Washington.
Hallward-Driemeier served in the George W. Bush administration's Justice Department, as an assistant to the solicitor general, from 2004 to 2009.
Here is where they describe the circuit split, which is the reason why the plaintiffs in all four cases expect that the justices will take at least one of these cases:
Even though both the Ohio and Tennessee cases only have plaintiffs seeking recognition of out-of-state marriages, the Tennessee plaintiffs tell the justices their case is about the "fundamental right to marry" in Friday's filing:
On Monday, petitions seeking Supreme Court review were filed by plaintiffs in the case out of Michigan, which involves only a marriage claim, and combined cases out of Kentucky, which involve marriage and marriage recognition claims. With those filings, petitions from all four states in the 6th Circuit are before the justices. The states will now have to file their response, after which the justices can consider whether to take one or more of the cases.