Tennessee opposes same-sex marriage review (FURTHER UPDATE)

FURTHER UPDATE Tuesday 5:28 p.m. Justice Clarence Thomas has called for a response to the Florida application, by 5 p.m. Thursday, December 18. The application has now been docketed as 14A650.

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UPDATED 5:58 p.m. The state of Florida on Mondayasked the Supreme Court to delay a federal judge’s ruling striking down that state’s ban. U.S. District Judge Robert Hinkle of Tallahassee nullified the ban in August, but delayed the effect of the ruling until January 5. The state wants the case postponed while it appeals to the U.S. Court of Appeals for the Eleventh Circuit, and seeks action on its plea before the current stay runs out early next month. The Eleventh Circuit has refused to extend that stay. The request goes initially to Justice Clarence Thomas; he can act alone or sharethe pleawith his colleagues.

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Breaking ranks with both sides in the new round of same-sex marriage cases awaiting the Supreme Court’s attention, state officials in Tennessee argued today that there is no need for the Justices to step in now. The U.S. Court of Appeals for the Sixth Circuit was right, the state argued, and its decision does not conflict with any Supreme Court precedents.

In four other pending cases, state officials have joined with challengers to state bans in asking the Justices to resolve the nationwide constitutional controversy. The other cases are from Kentucky, Louisiana, Michigan, and Ohio. The most that Tennessee officials would concede in their new brief was that it was for the Court to decide whether to get involved now; because the Sixth Circuit ruling does not conflict with what the Justices have said on related issues, it need not be reviewed. The Tennessee case is Tanco v. Haslam; it is a test by three same-sex couples thatstate’s ban on the official recognition ofalready existing same-sex marriages.

All five petitions are now close to being ready for the Court’s staff to send them on to the Justices for their initial consideration. The staff will be forwarding perhaps a few dozen cases to the Justices during the remainder of this month, and those would likely be considered at the Court’s next private Conference, scheduled for January 9. The Court is now in recess until then.

Meanwhile, as the Court preparesto turn to the pending cases, aconservative legal advocacy group, Eagle Forum Education and Legal Defense Fund,has suggested that, if the Court were to grant review, it should instruct the parties to brief an additional issue: whetherfederal courts lack power to decide the same-sex marriagequestion.

In an amicus brief filed in the pending case from Michigan (DeBoer v. Snyder), Eagle Forumargued that the so-called “domestic relations exception” keeps legal issues over marriage out of the federal courts. Challenges to bans on same-sex marriage, the brief argued, can proceedin state courts instead.

Eagle Forum had taken part in the Sixth Circuit’s review of the constitutionality of marriage bans in the four states in that region, including Michigan. The Sixth Circuit upheld all of the bans at issue, in the ruling now at issue in the Michigan case and in other petitions.

While it supports the Michigan ban, the group’s brief said, it joined in the Supreme Court proceedingsto ask that any review include “whether the Fourteenth Amendment allows federal judges to impose same-sex marriage on the states, taking the question out of the hands of the people of Michigan.”

Since theSupreme Court’s 1890 decision in In re Burrus, it has been understood that the federal courts lackjurisdiction over at least some issues of “domestic relations” law. The Supreme Court has sometimes indicated, in later opinions, that the exception to jurisdiction goes beyond divorce, alimony, and child support, but the Justices have never ruled expresslyon whether questions relating to marriage are also excluded from federal courts’ jurisdiction.

Part of the background of this question is whether marriage disputes are within the “cases or controversies” that the Constitution’s Article III gives the federal courts authority to decide. In its brief, Eagle Forum contended that, when the states ratified the Constitution beginning in the 1780s, “marriage-related issues” were not thought to be within Article III’s coverage.

The limitation of the exception, the filing said, indicates that those challenging state bans on same-sex marriage shouldbegin their challenges in state courts, which do have clear authority to decide those cases. Whether the Supreme Court would then have authority to review a state court decision on the question is not clear, the brief said, and would have to await an appeal from a state court thathad ruled on the issue.

The argument made in Eagle Forum’sbrief had not come up in many of the same-sex marriage cases that have been unfolding in recent years. But, as other legal defenses of same-sex marriage began failing regularly in court decisions, some state officials began seeking to rely on the “domestic relations exception” argument. So far, it has not prevailed in any court.

The Eagle Forum brief marked the first time this argument was put before the Court in a same-sex marriage case.

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