A federal appeals court will consider the gay marriage bans of South Dakota, Arkansas and Missouri in a sped-up process that positions itself to weigh in before an expected U.S. Supreme Court ruling that could settle whether same-sex couples can marry nationwide.
The 8th U.S. Circuit Court of Appeals granted a request Tuesday to consider cases from the states at an expedited pace, saying it would consolidate arguments from all three and would hear oral arguments the week of May 11 in Omaha, Nebraska.
That came as a surprise, given that the U.S. Supreme Court had already said in January it would hear arguments on gay marriage in April, with a ruling expected by late June.
The move makes the conservative-leaning 8th Circuit the final federal appellate court to take action on the issue of same-sex marriage. It likely decided to weigh in for several reasons, said South Dakota Attorney General Marty Jackley, who had filed a joint motion Monday with the attorney for the six same-sex couples in the state asking the appeals court to expedite the process.
Jackley said the court may want to signal to the U.S. Supreme Court how it thinks the high court should rule, and give it a better sense of where the appellate courts stand. The Republican attorney general also said the court needs to have a ruling on the record in the event that U.S. Supreme Court narrowly draws its decision and fails to address all the issues that could arise regarding same-sex marriages. He cited the court’s narrow decision on the Defense of Marriage Act and Proposition 8 in California in 2013.
“So to the extent that the Supreme Court doesn’t fully answer of all the questions,” Jackley said, “however the 8th Circuit rules in the Missouri, South Dakota and Arkansas cases will be the law of the land, so to speak (in the 8th Circuit).”
The Supreme Court plans to take up gay-rights cases that ask it to overturn bans in four states and declare for the entire nation that people can marry the partners of their choice, regardless of gender. The court chose not to decide this issue in 2013, even as it struck down part of the federal anti-gay marriage law — paving the way for a wave of lower court rulings across the country in favor of same-sex marriage rights.
It is unusual for a lower appeals court to consider a case that’s already set for arguments before the highest court in the land, said Michael Gans, clerk of court for the 8th Circuit. Even before the arguments are heard in Omaha, he said, the Supreme Court could issue an order putting them on hold.
“It’s just difficult to predict what’s going to happen here — if the Supreme Court could do something that would make these cases moot or change the issues in them. And I really just don’t know how this is all going to play out,” Gans said.
In South Dakota, same-sex marriages are still illegal. U.S. District Judge Karen Schreier sided in favor of the six couples who sued in May in Sioux Falls, but stayed her decision pending appeals.
In Missouri, St. Louis and Jackson counties and the city of St. Louis began issuing same-sex marriage licenses last year because of various court rulings. The rest of the state’s 112 counties have opted not to, pending resolution of the legal challenges.
And in Arkansas, U.S. District Judge Kristine Baker ruled in November that Arkansas’ gay-marriage ban and a separate law restricting marriages to one man and one woman were unconstitutional, but she delayed enforcement of her order pending appeals.
Jackley, in South Dakota, also said the 8th Circuit needs to take up the issue to resolve conflicting rulings in the circuit. In 2006, the appeals court affirmed Nebraska’s right to ban same-sex marriages.
“And so that needs to be resolved within the circuit, and the best place for that would be the 8th Circuit Court of Appeals,” Jackley said.