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The Supremes Ain’t Just Whistlin Dixie

supreme-court-protest-570x314Northern Marriage Equality states and those on the East and West coasts may soon be joined by some of the most conservative Southern states.

A panel of judges from the conservative Fifth Circuit Court of Appeals will hear arguments on Friday in three separate challenges to marriage equality bans in the Southern states of Texas, Louisiana and Mississippi.

The Judges in both Mississippi and Texas had ruled those states bans on marriage equality unconstitutional. The Judge in Louisiana upheld that state’s ban.   All three cases were appealed to the Fifth Circuit where Judges Jerry E. Smith, James E. Graves, and Patrick Higginbotham will hear Friday’s arguments.

Smith is a President Reagan appointee and has developed a reputation as a conservative, partisan judge. Higginbotham is also a Reagan appointee but considers himself a progressive. Graves is an appointee of President Obama.

The question in these cases is this: does the 14th Amendment’s Equal Protection Clause prohibit states from defining marriage as between one man and one woman?

So far, a majority of lower courts have found that LGBTQ couples must be treated the same as heterosexual couples in terms of legal marriage. In other words, a state cannot simply say they – as duly elected legislators – have a right to define marriages or that the voters have a right to vote on whether or not to approve a ban as a ballot measure.  Rather, courts have been ruling that a state must show it has a compelling interest in restricting a citizen’s right to participate in marriage because it is a fundamental right that is guaranteed by the U.S. and state constitutions.

In the meantime, until the Supreme Court steps in and settles the issue nationwide, we’ll continue to have this patchwork quilt system of marriage rights where in one state, a gay and lesbian couple has a constitutional right to be married yet in a neighboring state that right doesn’t exist.

The Supremes could decide later this month to hear a marriage case during the current term, which would point to a ruling sometime in June. And unlike in previous cases, a substantive and final decision is likely to follow.

Advocates for same-sex marriage should be optimistic: four liberal justices will certainly vote for marriage equality, and Justice Kennedy, a conservative in many ways, has endorsed their arguments before .

All that’s left to determine is the timing.

The remaining cases scheduled for Friday’s Supreme Court conference include marriage equality challenges in Ohio, Kentucky, Tennessee, and Michigan. But unlike in October when the Roberts Court denied review of cases from Wisconsin, Oklahoma, Utah, Virginia, and Indiana challenging rulings in favor of marriage equality, the cases scheduled for Friday’s conference involve later rulings upholding bans on same-sex marriage. This disagreement among the federal courts as to whether states can constitutionally ban marriage between same-sex couples makes it more likely the Roberts Court will agree to take up the issue this time.

At last count, 36 states recognize marriage equality, with Florida becoming the latest to do so Monday. Only nine states and the District of Columbia recognized marriage equality when the Supreme Court heard arguments in 2013 challenging the federal Defense of Marriage Act and California’s Proposition 8.

The Supreme Court could rule as early as Friday on whether it will take up the marriage equality cases, or it could wait until Monday when the Court typically releases its orders.

A decision from the Fifth Circuit could take months. Should the Roberts Court on Friday agree to hear one or all of the marriage equality cases, that would mean a ruling on the issue would come this summer.

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