WASHINGTON — From Michigan and Ohio to Kentucky and Tennessee, same-sex couples and their lawyers were reeling Thursday after the decision of the 6th Circuit Court of Appeals to uphold the states’ bans on marriages, reversing lower court decisions.
Almost immediately, though, the question turned to what’s next.
On Thursday evening, lawyers from cases in all four states talked with BuzzFeed News about the next steps, with multiple attorneys saying that a call is planned for Friday so that the four teams of lawyers can confer about Thursday’s decision and steps forward.
Lawyers in all four cases told BuzzFeed News they plan to appeal the three-judge ruling — but not everyone has decided what the path forward should look like. The plaintiffs could either ask the full 6th Circuit to rehear the case, called an en banc rehearing, or they could go directly to the Supreme Court and file a petition for a writ of certiorari, the formal way the court agrees to hear an appeal.
The decision, of course, has an impact outside of the four states, as a Supreme Court decision — should the court take a case — would have nationwide impact, and some advocates are still hoping to see that happen this term, which would mean a decision expected by June 2015.
Some were ready on Thursday evening already to say that they will be skipping the en banc step and heading straight to the Supreme Court. Lawyers for the plaintiffs in the Michigan case, which is seeking full marriage rights, and the Ohio case, which solely involves seeking recognition of same-sex couples’ marriages granted elsewhere, tell BuzzFeed News they plan to file cert petitions in the Supreme Court in the coming weeks.
Al Gerhardstein, representing Ohio’s James Obergefell, said he will be filing a cert petition at the Supreme Court, hopefully by next Friday, Nov. 14. Dana Nessel said that she would be doing the same on behalf of her Michigan clients, April DeBoer and Jayne Rowse, although she did not lay out a timeline for the filing.
“Justice [Ruth Bader] Ginsburg said they were waiting for a split on this issue — and they certainly have that now,” Nessel said.
Lawyers for the Kentucky and Tennessee cases, on the other hand, said they have not made a decision which route to take — although Dan Canon, the lawyer for the Kentucky plaintiffs, said, “All signs point to a petition for certiorari without seeking en banc or a petition for rehearing.”
Shannon Minter, an attorney with the National Center for Lesbian Rights who is one of the attorneys in the Tennessee case, said only that they have “a whole team of counsel and we are talking in the near future,” but that no decision had been made.
Canon, while expressing confidence in his case, said he was not ready yet to shut the door on the possibility of requesting an en banc rehearing, noting, “I think it would be foolish of anyone to be overconfident in taking this to the Supreme Court.”
But Gerhardstein, the Ohio lawyer, wants to move ahead — and he wants everyone else to come with him.
“If they think they want to go en banc, I’m going to talk them out of it,” he said. “If we move quickly, and we’re all coordinated … the goal [would be] to be heard this term — and I think the country needs it.”
If the cases split paths, with some choosing an en banc route, the move could, theoretically, slow things down. If, say, the Tennessee plaintiffs file for an en banc rehearing, the Supreme Court justices could hold any other states’ marriage petitions until the 6th Circuit decides whether to hear the case en banc.
That delay, particularly if the 6th Circuit declines to hear the case en banc, wouldn’t necessarily last a long time. But it could be long enough to mean that the Supreme Court wouldn’t get around to deciding whether to hear one of the other cases until it is too late for the case to be heard this term. Such a decision would then push the selected case into the next term, which begins in October 2015.
Gerhardstein and Nessel want to avoid that, with Nessel saying, “These couples deserve some finality, an answer to this question.”
The Tennessee plaintiffs will be seeking immediate Supreme Court review of Thursday’s decision, lawyers tell BuzzFeed News.
“[G]iven the urgency of the issues for the Tennessee plaintiff couples, we will be asking the Supreme Court to review the Sixth Circuit decision rather than seeking en banc review,” National Center for Lesbian Rights lawyer Shannon Minter wrote to BuzzFeed News.
The Kentucky plaintiffs will be seeking immediate Supreme Court review of Thursday’s decision, the couples’ lawyer tells BuzzFeed News.
“Since it seems as though review of this issue by the Supreme Court is an inevitability, we are not seeking en banc review. We hope to have the Kentucky case fully briefed and before the SCOTUS at the earliest possible date,” Dan Canon wrote to BuzzFeed News.
Abby Rubenfeld, the lead lawyer for the Tennessee plaintiffs, updated BuzzFeed News about Friday’s call with the counsel from all four states.
“We just had a conference call with the attorneys from all four Sixth Circuit states on the marriage cases. We were all in agreement to apply for certiorari at the supreme court, and not to first seek en banc review in the Sixth Circuit,” she explained. “Given the significance of the issue, the reality that it will end up in the Supreme Court ultimately, and the harms that all of our clients are suffering each day that their marriages are not recognized, we want to get to the Supreme Court sooner rather than later.”
“We hope to file within two weeks, and hopefully sooner, so that we can still be on the docket for this term—which means resolution by june 30, 2015,” she added.
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