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Same-Sex Marriage Issue Could Be Fast Tracked at Sixth Circuit

Posted in Recent Cases

How will the Sixth Circuit rule on the high-profile issue of whether the State of Ohio constitutionally is required to recognize, on an Ohio resident’s death certificate, a same-sex marriage that was lawfully performed in another state? We may find out sooner rather than later.

On Valentine’s Day, the plaintiffs in Obergefell, et al. v. Wymyslo, et al. (6th Cir. Case No. 14-3057), filed a motion for an expedited briefing schedule and argument in the appeal filed by Ohio Attorney General Mike DeWine from the December 23, 2013 decision by the U.S. District Court for the Southern District of Ohio holding that “under the Constitution of the United States, Ohio must recognize on Ohio death certificates valid same-sex marriages from other states.”  See Plaintiff-Appellees’ Motion for Expedited Briefing Schedule (PDF).

Sixth Circuit Rule 26(f) provides that a motion to expedite briefing may be granted upon a showing of “good cause,” while 28 U.S.C. § 1657 similarly permits an action to be expedited based on “good cause,” which exists “if a right under the Constitution of the United States or a Federal Statute . . . would be maintained in a factual context that indicates that a request for expedited consideration has merit.” The plaintiffs argue in their motion to expedite that “[t]he sheer volume of same-sex marriage cases in federal and state courts across the country and the rapid pace with which they are moving indicates that the constitutionality of laws, such as Ohio’s, that deny respect to the marriages of same-sex couples entered into in other states is an issue of tremendous public importance that deserves prompt attention from the Court.”

The Ninth and Tenth Circuits both have accelerated their calendars in appeals involving challenges to state bans on the performance and recognition of same-sex marriages, so it is possible the Sixth Circuit will follow the lead of these other Circuits. This is a case that may end up at the Supreme Court in 2014 or 2015, so we will keep a close watch.