The motivation to not come out with a judgement days before the election would be to avoid making it a political issue. Delaying it to avoid a SCOTUS review would be more cynical … a hope that justice delayed really would become justice denied, or just an acknowledgement that delay is the best defendants of marriage bans can hope for.
Very possibly these things aren’t motivating the panel, or specifically Judge Jeffrey Sutton, who is generally agreed to be the swing vote. The three months they’ve taken so far is not that far beyond the range of deliberation times for other circuits. Here’s what I’ve gleaned on previous decisions:
Circuit, Case Common Name, Oral Argument Date, Judgement Date, Vote
10th, Kitchen v. Herbert, April 10, June 25, 2-1
4th, Bostic v. Schaefer, May 13, July 28, 2-1
7th, Baskin v. Bogan, Aug 26, Sept 4, 3-0
9th, Latta v. Otter Sept 8, Oct 7, 3-0
So about two and half months where there was a dissent, and less than a month where there wasn’t.
KS is that last State in the 10th to not have marriage equity. The 10th was one of the circuits where SCOTUS denied cert so it should have been automatic.
So the bigots will appeal to the 10th who will say, “we already told you once that you have to allow SSM. Why don’t you get the hint?” Then they’ll appeal to SCOTUS which is Sotomayor and she will say, “what part of we denied cert don’t you understand?” and that will be that.
Other than KS, we still have SC and MT who are in the same “it’s just a matter of time because of the cert denial” boat.
A Missouri judge just ruled for marriage equity but it only applies to St Louis for the time being. No stay has been issued. Anyone in the state can get married to a same gender partner and it will be legal but they have to go to that one city for now.
The Governor, who is pro SSM, is appealing. If he “loses” the ban will be lifted for the entire state.
The 6th Circuit just upheld SSM bans, so I missed my guess by a few days. I thought they’d delay it just a bit to avoid the appearance that they were just holding off until the election, but apparently they didn’t care. It’s a disappointing judgement, but at least it will force the Supremes’ hand. I doubt SCOTUS will take it up this session though. We’ll see.
Well, folks, this is very disappointing but we now have a circuit split so SCOTUS will have to act. First, though, the SSM proponents (just one of them really) can ask for an en banc hearing which means that all of the judges get to vote and it could end up the other way. I don’t know the make up of the entire 6th to know how that would go even if en banc is granted which isn’t a certainty.
Maybe, but if the Supremes take it up and say that SSM bans are constitutional, than all the circuits that have allowed it, all that gets reversed. So…
As I understand it, the en banc can reverse the three judge panel and then we are back to the old status quo of no circuit splits and SSM becomes legal in the 6th. SCOTUS will deny cert like before. From what I have read, people who follow this circuit think that the en blanc would go with the panel on an 8-7 vote so we’d be back where we were.
It’s a real shame for those people in the 6th who are being denied justice but we would probably end up with a split anyway later when the much more conservative 5th makes their decision.
Yes, the circuit sitting en banc could reverse the original panel decision. Senior judges don’t participate in the en banc sitting (unless that judge was on the original panel, so Judge Daughtrey would be on the panel), so it would be the active circuit judges plus Judge Daughtrey. Everybody can do the math on the Democrat/Republican breakdown.
Plus, there’s already a poor opinion of the Supreme Court in the US for being way too political. After all these other controversial decisions in the last few years, would Roberts really want to be known as leading the court that blocked marriage equality as well?
Then there’s the other spin of, Would Roberts really want to be known as the one that ‘legislated from the bench’ and forced same sex marriage on the country?
Except it generally has been coming up through state legislatures, state courts, or only just recently the circuit courts. After Windsor striking down the federal parts of DOMA, there are real due process and equal protection issues.
It’s 4 Clinton + 2 Obama = 6
1 Reagan + 1 Bush Sr + 8 W = 10
But it hasn’t been following strict party lines in other courts in that more than a few nominated by GOP Presidents have come down on the side of SSM. A tie keeps the decision so three GOP appointments need to vote pro SSM if the Dems hold. We know how two of the GOP votes are going to go of course. I wonder about the other guys.