ANALYSIS: Don’t plan on getting gay-married in Texas before 2016

Plaintiffs and their attorneys in a lawsuit challenging Texas’ same-sex marriage bans say they’re disappointed that oral arguments won’t be held until January at the 5th U.S. Circuit Court of Appeals in New Orleans.

The 5th Circuit had agreed to expedite the Texas case, DeLeon v. Perry, and marriage equality supporters were hoping for oral arguments next month. But on Monday, the court tentatively scheduled those arguments for the week of Jan. 5. The 5th Circuit also set oral arguments in two marriage cases from Louisiana for the same week.

The Houston Chronicle reports:

“This doesn’t look like a very expedited schedule to me. But justice can’t come soon enough,” said Daniel McNeel “Neel” Lane, an attorney for the two same-sex couples challenging Texas’ ban on gay marriage. U.S. District Judge Orlando Garcia of San Antonio struck down the 2005 ban in February, saying it violated couples’ 14th Amendment rights to due process and equal protection.

Nicole Dimetman and her wife Cleopatra DeLeon, one couple on the appeal, are expecting the birth of their second child in March. They had requested an expedited hearing in the hopes the legal process would be completed, or at least further along, at that time.

“I may have to miss the argument in January because I will be in my third trimester and may not be able to travel,” Dimetman said. “That is sad for Cleo and me and for everyone else who is waiting for the Fifth Circuit to recognize our right to marry.”

The disappointment is understandable, and we all want marriage equality in Texas as soon as humanly possible. But the fact is there was never much a chance for the Texas or Louisiana cases to get to the Supreme Court in 2015. The last, best hope for that is the 6th U.S. Circuit Court of Appeals, which heard oral arguments in six marriage cases in August and could issue a ruling any day now. If the 6th Circuit rules against marriage equality soon, there would still be time for the U.S. Supreme Court to take up an appeal in 2015 and issue a nationwide ruling, but that window is closing, according to Ken Upton, senior counsel at Lambda Legal.

Even if oral arguments had been held at the 5th Circuit in November, a decision from a three-judge panel of the court wouldn’t have been likely until March — too late for the Supreme Court to consider review in the 2015 term, Upton said.

If a three-judge panel of the 5th Circuit rules in favor of marriage equality, Texas and/or Louisiana likely would appeal the decision to the full court, which could delay the case for another year, he said. If a three-judge panel of the 5th Circuit rules against marriage equality, plaintiffs could appeal directly to the U.S. Supreme Court, which could then take up the case in 2016.

Upton said he believes the Louisiana case, Robicheaux v. Caldwell, which Lambda Legal is now handling,  has the best chance of getting to the Supreme Court out of the 5th Circuit. That’s because the Texas case involves a preliminary injunction, so any decision from the 5th Circuit would have to go back to the district court for a decision on the merits.

Upton said the Supreme Court typically doesn’t hear cases involving preliminary injunctions. The Louisiana case, however, already has a decision on the merits, so it’s more likely to be heard by the Supreme Court. Upton also said it’s possible the two cases could go up to the high court together.

The bottom line seems to be that unless the 6th Circuit hands down a ruling against marriage equality sometime soon, we aren’t likely to have marriage equality in Texas until at least 2016. If the 6th Circuit rules against marriage equality, it would create a split with other circuit courts that have ruled in favor of marriage equality.

The Supreme Court let three pro-marriage circuit court decisions stand earlier this month, so if there is an anti-marriage circuit court ruling, the justices could be compelled to settle the conflict with a nationwide ruling. However, if the 6th Circuit rules in favor of marriage equality, same-sex marriage would simply become legal in those states as it has in the other circuits — leaving the issue unresolved in the 1st, 5th, 8th and 11th circuits.

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