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(click to view) [btn-close.png] Editor's Note : On Monday at 9:30 a.m. we expect additional orders from the January 23 Conference, as well as one or more opinions in argued cases at 10:00. We will be live-blogging here. [lyle-denniston.jpg] Lyle Denniston Independent Contractor Reporter Posted Fri, November 7th, 2014 8:29 am Bio & Post Archive » Analysis: Paths to same-sex marriage review (UPDATED) Posted Fri, November 7th, 2014 8:29 am by Lyle Denniston UPDATED 4:10 p.m. Lawyers representing the challengers in all six of the cases decided by the Sixth Circuit have agreed, legal sources said Friday, that they will each go directly to the Supreme Court, bypassing en banc review requests. Petitions in the Supreme Court may be filed as early as late next week, according to those sources. That probably would head off any vote, called at the request of any judge on the Sixth Circuit, on whether to move to en banc review. ————– Depending upon how fast lawyers choose to move, the issue of same-sex marriage could be back before the Supreme Court in a matter of days. So far, only one option has been closed off. The remaining options have some, perhaps considerable, chances of success. The decision Thursday by the U.S. Court of Appeals for the Sixth Circuit, upholding bans on same-sex marriage in four states, has clearly increased the prospect that the Justices will now take on one or more appeals — perhaps even in time for decision in the current Term. Already, lawyers representing some of the same-sex couples involved have promised a swift appeal to the Supreme Court. A direct challenge to the Sixth Circuit’s ruling is one of a handful of potential ways to try to persuade the Court to step in now. When the Court on October 6 turned down seven petitions from five states, there was then no split in final decisions among federal courts of appeals in the most recent round of same-sex marriage lawsuits; all had struck down state bans. But the actual date of those denials is now decisive in taking away one option to appeal to the Court. Under the Court’s rules, a lawyer in any one of those cases could have asked the Justices to reconsider the denial. That is a tactic that almost never works, but there is an important modern precedent for doing so: after the Supreme Court had turned down a major case on the rights of war-on-terrorism detainees at Guantanamo Bay in 2007, it changed its mind, accepted review, and went on to issue a major constitutional ruling in 2008. Before the Sixth Circuit’s ruling on same-sex marriage, such a rehearing plea probably would have been futile. The option is no longer available: the Court’s Rule 44 says that a petition for rehearing of the denial of a petition must be filed within twenty-five days after the denial order was issued. And the rule specifies that the time “will not be extended.” So, for the seven petitions, that cutoff date has come and gone. What other options remain? There is the option of asking the Sixth Circuit itself to reconsider its ruling before the full bench (“en banc”) as a prelude to going on to the Supreme Court, but that would slow down the process considerably and very likely would delay the issue beyond the Court’s current Term. And, it appears, at least some of the lawyers and their clients have already ruled that out. Assuming a direct approach to the Supreme Court, here are some alternatives: Option 1: File one or more petitions for review, focusing on the Sixth Circuit’s ruling. While the Court’s rules allow ninety days before such a petition must be filed, no one expects any lawyer interested in prompt review to take that much time. Petitions could be filed very quickly because the lawyers involved are fully familiar with the issues, and need not write an exhaustive petition at this stage. It basically would be a matter of rearranging arguments already advanced in lower courts and then getting the documents printed — tasks that can be done very rapidly. Lawyers handling the several cases will be planning jointly, but that, too, need not take much time. Option 2: File a petition for review of a ruling by a different federal appeals court that has not yet been appealed to the Supreme Court and for which the ninety-day filing deadline has not yet been reached. There was not much promise of gaining Supreme Court review of such a case when there was no split in the appeals courts; now there is. Cases decided in the Ninth Circuit, for example, would be open to this option, particularly a case from Idaho. That is an option that might well be attracted to officials in a state who want to continue to strongly defend their same-sex marriage bans. Option 3: Ask the Supreme Court to grant review now of a case that is now pending in a federal appeals court, but has not yet been decided there. Such a petition for “certiorari before judgment” is allowed, as long as the case has formally been filed in a federal appeals court. That is already the situation for cases from Louisiana and Texas, in the Fifth Circuit; from Kansas, in the Tenth Circuit, and from Florida, in the Eleventh Circuit. It will soon be true in other courts of appeals, such as a Puerto Rico case in the First Circuit. Among those three options, Option 1 might have the most promise of gaining Supreme Court review because the Sixth Circuit’s decision is the one that broke the pattern, because it involves an array of cases from four states, raising the constitutionality of bans on both new same-sex marriages and the official state recognition of out-of-state same-sex marriages, because it was written by a highly respected court of appeals judge (Jeffrey S. Sutton), because it brought a stirring dissent by another well-regarded jurist (Senior Circuit Judge Martha Craig Daughtrey), and because the opinions swept across all of the issues that have been raised in case after case — even the rather obscure question whether a refusal to recognize an out-of-state same-sex marriage violates the constitutional right to travel, and the emotional question of whether a death certificate for a same-sex spouse who has now died should show that there was a surviving spouse. The time to prepare the papers in pursuing any one of the three options would not vary much between them. One thing, though, needs to be stressed: the Court itself still retains the option of choosing not to get involved. However, a month after it made that choice on October 6, the situation has changed dramatically, and that option has certainly diminished, if it hasn’t actually lapsed as a realistic matter. If any petition gets to the Court within the next few weeks (at the outside), it could be put before the Justices in time for a hearing and decision in the current Term. The seven petitions denied on October 6 were moved along at a much faster pace than normal. Posted in Cases in the Pipeline, Featured, Same-Sex Marriage, Same-Sex Marriage Post-Windsor Recommended Citation: Lyle Denniston, Analysis: Paths to same-sex marriage review (UPDATED), SCOTUSblog (Nov. 7, 2014, 8:29 AM), http://www.scotusblog.com/2014/11/analysis-paths-to-same-sex-marriage-review/ Share: * Featured Posts Court to rule on lethal-injection protocol – Lyle Denniston Justice Scalia keeps both sides guessing in Fair Housing Act case: In Plain English – Amy Howe Argument analysis: What exactly is a “routine” traffic stop, and should a suspicionless dog sniff be part of it? – Rory Little * Merits Case Pages and Archives [This Term's Merits Cases____________________________________________________________________] Archives [Month____] or [Category_________________________] View Term Snapshot * This Week at the Court On Friday the Court granted two new cases from its January 23 Conference. Lyle covered those orders here. On Monday at 9:30 a.m. we expect additional orders from the January 23 Conference, as well as one or more opinions in argued cases at 10:00. We will be live-blogging here. * Major Cases + King v. Burwell Availability of federal tax subsidies to individuals who purchase health insurance on an exchange operated by the federal government + Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. Whether disparate-impact claims are cognizable under the Fair Housing Act + Alabama Democratic Conference v. Alabama Validity of Alabama redistricting plan under the Voting Rights Act of 1965 + Elonis v. United States Standard to determine a "true threat" under the First Amendment + Zivotofsky v. Kerry Federal statute regarding place of birth on passport for U.S. citizens born in Jerusalem + Heien v. North Carolina Reasonable mistake of law provides reasonable suspicion for Fourth Amendment purposes. see all this Term’s cases » * Upcoming Oral Arguments + 2/23Coleman-Bey v. Tollefson Definition of “three strikes” provision in federal Prison Litigation Reform Act. + 2/23Kerry v. Din Right of U.S. citizen to sue consular officer over denial of a visa to a spouse. + 2/24Henderson v. United States Federal court authority to require the government to transfer guns seized from an individual without a legal right to have a gun. + 2/24Tibble v. Edison International Time limit to file a lawsuit against an employee benefit plan manager over investment decisions on plan assets. + 2/25Baker Botts, L.L.P. v. ASARCO, L.L.C. Bankruptcy judge’s authority to award attorneys’ fees for defending an application for an award of such fees. + 2/25Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc. Scope of employer’s duty under Title VII not to discriminate against a job applicant based on religion. More Arguments » * Upcoming Petitions Conference of January 23 More Petitions » * Major Pending Petitions + Bourke v. Beshear State ban on same-sex marriage + Obergefell v. Hodges State ban on same-sex marriage + DeBoer v. Snyder State ban on same-sex marriage + Tanco v. Haslam State ban on same-sex marriage * Recent Decisions + Holt v. Hobbs Arkansas ban on half-inch beards for Muslim prisoners violates RLUIPA. + Department of Homeland Security v. MacLean Threshold of eligibility under the Whistleblower Protection Act + Gelboim v. Bank of America Corporation Dismissal of one-claim action in multidistrict litigation triggers a right to appeal. + Hana Financial, Inc. v. 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