The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Petition for certiorari filed in the Ohio [UPDATE: and Tennessee] marriage cases


The ACLU and Lambda Legal have just filed a joint petition in a case seeking Ohio's recognition of same-sex marriages performed validly out of state. I expect more to come very soon from the same-sex couples in the other three states (Kentucky, Michigan, and Tennessee) who were denied marriage licenses by their own states and who lost at the Sixth Circuit in DeBoer v. Snyder. This starts the clock ticking on a possible same-sex marriage decision this Term. You can access the petition through this link. Here is the key paragraph explaining the need for Supreme Court review:

The Sixth Circuit majority's ruling robs married same-sex spouses and their children of dignity and legal respect from cradle to grave. It squarely and irreconcilably conflicts with four other circuits on a question of pressing national importance-the right of committed same-sex spouses to lead their lives as married, protect each other and their children through marriage, and move securely among the states. The ruling can be expected to breed chaos in the courts, among employers, and, most fundamentally, in the lives of thousands of lesbian and gay families, who will have no assurance when they cross state lines that they will carry their marital statuses with them. More than 62 percent of the country lives in a state where same-sex couples can now marry.

Ohio's refusal to respect marriages entered in those jurisdictions creates an intolerable situation for lesbian and gay spouses living, working, visiting, or otherwise having interactions in Ohio. The Sixth Circuit decision likewise exacerbates a split in the circuits on a separate question also deeply important to same-sex families and their children-whether a state must afford full faith and credit to sister state judgments of adoption of children parented by same-sex couples. The Ohio cases present excellent vehicles to resolve these issues now dividing the circuits and affecting families throughout the nation.

UPDATE: A petition has now been filed by the National Center for Lesbian Rights and other lawyers representing same-sex couples in Tennessee who were denied marriage within the state or were denied recognition of their out-of-state marriages, but who lost last week in the Sixth Circuit. You can read the petition here. Key passage:

This case provides an appropriate vehicle for the Court to address the critical constitutional issues on which the Sixth Circuit split from its sister courts. The court of appeals' decision addresses each of the constitutional theories on which the right of same-sex couples to marry has been upheld by other courts of appeal, as well as the right of lawfully married same-sex couples to have their marriages recognized in their new state of residence. These petitioners raised in their complaint and briefs below the full range of overlapping, but distinct, legal theories to support their claim to have Tennessee recognize their marriages. They challenged: (1) the denial, in violation of the Due Process Clause, of their fundamental right to marry and the further right to have their lawful marriages respected; (2) violation of their right to travel, by stripping them of their marital status upon moving to Tennessee; and (3) violation of the Equal Protection Clause, based on the State's unequal treatment, without justification, of same-sex couples like petitioners relating to marriage and marriage recognition. This Court has, in the past, indicated the overlapping nature of many of these rights, see Bolling v. Sharp, 347 U.S. 497, 499-500 (1954), and the petition affords the Court the opportunity to clarify different strands in its jurisprudence as it deems necessary. See, e.g., Lawrence v. Texas, 539 U.S. 558, 578-579 (2003) (relying on the Due Process Clause so as to clarify that Bowers no longer remained valid precedent).

Importantly, no jurisdictional or procedural defects would prevent the Court from finally resolving the critical constitutional questions that divide the courts of appeals.