Bench Memos

Louisiana Supports Cert Before Judgment in Marriage Case

The state of Louisiana, having successfully defended its marriage laws in federal district court (in Robicheaux v. Caldwell), is supporting plaintiffs’ request that the Supreme Court grant review of the district-court ruling before the Fifth Circuit rules on their appeal. Although that step is highly unusual, it makes sense under the circumstances. As Louisiana explains:

Petitioners are right that the extraordinary mechanism of cert-before-judgment is appropriate here…. Louisiana’s case squarely implicates a spiraling national controversy that has already nullified the marriage laws of over twenty States and spawned a four-to-one circuit split. Multiple petitions are pending before this Court, presenting the same issue in various forms. The Robicheaux decision was the first federal ruling since Windsor to uphold a State’s marriage laws; only the Sixth Circuit’s DeBoer decision has joined it. Robicheaux and DeBoer are the sole counterweights* to a flood of decisions condemning the view that marriage is limited to male-female couples—a view that “until recent years … had been thought of by most people as essential to the very definition of [marriage] and to its role and function throughout the history of civilization.” Windsor….

[R]eviewing the Louisiana case along with one or more petitions from the Sixth Circuit will allow the Court to consider a wider range of marriage laws, defended by a wider array of legal arguments.

* As Louisiana notes in the body of its pleading, there is also the recent ruling by a federal district judge in Puerto Rico rejecting a challenge to Puerto Rico’s marriage laws.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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