After last October’s Supreme Court punt, when the United States Supreme Court declined to hear an appeal of the Ninth Circuit’s decision that found same-sex marriage bans inconsistent with rights guaranteed by the United States Constitution, there were three other federal appellate courts that had reached the same conclusion—the Fourth, Seventh, and Tenth Circuits.
The Supreme Court’s disinclination to hear the issue may have been a result of the unanimity with which the circuit courts were ruling. Since every federal appellate court to decide the issue reached the same conclusion, there was no circuit split to resolve, and since one of the Supreme Court’s prime directives is to resolve circuit splits, there was good reason to decline to hear the case. There also was good reason to entertain the appeal since another of the Supreme Court’s directives is to resolve issues of significant public concern. Same-sex marriage undoubtedly qualifies.
The gay marriage landscape changed, however, when the Sixth Circuit in November upheld same-sex marriage bans in Kentucky, Michigan, Ohio and Tennessee. The Sixth Circuit wrote that this issue was one best left to voters and lawmakers instead of judges. This is a point not lost on Nevadans—who despite having amended their constitution to disallow same-sex marriages, had their voices silenced by a panel of three Ninth Circuit judges who disagreed. The Sixth Circuit’s departure created a circuit split (meaning different circuit courts interpreted the same laws differently), which all but guaranteed future Supreme Court involvement.
January 16, 2015, news broke that the U.S. Supreme Court would decide the issue of same-sex marriage. Oral arguments on the issue will likely occur in April, with the court’s decision to follow.
Zachariah B. Parry is an attorney and founding partner at the law firm Parry & Pfau and is an adjunct professor who teaches torts, contracts, and Nevada practice and procedure for UNLV’s paralegal program. He can be reached at 702-912-4451 or firstname.lastname@example.org.