Brace Yourselves: Marriage Equality’s Going To Have A Rougher Ride In The Courts From Here On Out


On Friday, a federal district court in Wisconsin joined more than a dozen others in holding that the Constitution guarantees equal marriage rights to same-sex couples. Exactly zero federal judges have broken with this consensus since the Supreme Court declared the anti-gay Defense of Marriage Act unconstitutional in 2013.

Now, however, these cases will move on to the United States Courts of Appeals, if they have not already done so. Currently, six federal appeals courts, the Fourth, Fifth, Sixth, Seventh, Ninth and Tenth Circuits, face marriage equality cases. Though it is fairly likely that equality will prevail in most of these circuits — the legal arguments for marriage equality are very strong, especially after the Supreme Court’s 2013 decision, and supporters of discrimination are left with a questionable states rights argument that no judge has yet embraced — it is unlikely that appellate court judges will show the same unanimity as their counterparts on the trial bench. Among other things, appointments to federal circuit courts have historically been much more politically charged than appointments to the lower-ranking district courts, so litigants are far more likely to encounter a judge who was selected for their loyalty to a particular ideology.

Here’s a breakdown of the six federal appeals courts considering marriage equality litigation, ranked from the courts most likely to side with equality to those that are most likely to uphold discrimination:

  • Ninth Circuit (Alaska, Arizona, California, Hawai’i, Idaho, Montana, Nevada, Oregon and Washington): Simultaneously the nation’s largest court of appeals and one of its most liberal, the Ninth Circuit boasts 29 active judges — 20 of whom were nominated by Democratic presidents. Two caveats should be noted, however. The first is that a few of President Clinton’s nominees are quite conservative, and were nominated a part of a deal with Senate Republicans to ensure the confirmation of other nominees. The second is that federal appeals courts typically hear cases in randomly selected three-judge panels, so it is possible to draw a panel with two very conservative judges in the Ninth Circuit, including the infamous torture memo author Jay Bybee. Nevertheless, the math strongly favors a pro-equality panel in the Ninth Circuit, and an anti-gay decision by a conservative panel can be overruled by a larger panel through a process known as en banc.
  • Fourth Circuit (Maryland, North Carolina, South Carolina, Virginia and West Virginia): The Fourth Circuit was once one of the most conservative federal appeals courts in the country. A few retirements and several Obama appointees later, it is now one of the most liberal. For this reason, supporters of marriage equality received a somewhat unlucky break when the names of the three judges hearing a marriage equality case in this circuit were revealed. One of the panel’s members is Judge Paul Niemeyer, arguably the most conservative judge on the court. Another is Judge Henry Floyd who, while technically an Obama appointee, was nominated to the Fourth Circuit at the recommendation of Republican Senators Lindsey Graham and Jim DeMint. Floyd was previously named to a federal trial court by George W. Bush. Nevertheless, while Floyd was fairly quiet during oral argument, he did seem skeptical of the states’ rights argument at the heart of the case for discrimination, and the third judge on the panel, Judge Roger Gregory, left little doubt that he supports marriage equality. So a victory for equality appears likely in the Fourth Circuit, and a defeat can be appealed to the en banc court.
  • Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming): The Tenth Circuit is a fairly evenly divided court at the moment. Although Democratic appointees currently have a 7–5 advantage among the court’s active judges, at least one of President Obama’s appointees sided with the court’s conservatives in a major birth control case. Moreover, the two marriage equality cases pending before the Tenth Circuit were assigned to a panel of two Republican judges and only one Democrat. Nevertheless, one of the Republicans, Judge Jerome Holmes, may have already revealed that he intends to vote in favor of equality. Holmes voted not to stay a trial judge’s decision ruling in favor of marriage equality in Utah last December.
  • Seventh Circuit (Illinois, Indiana and Wisconsin): Republican appointees enjoy a 7–3 advantage among the Seventh Circuit’s active judges, and the court’s Republicans include some staunch allies of the Federalist Society, an influential conservative legal organization. At the same time, however, the Court’s Republican appointees also include Judge Ilana Rovner, who recently sided with the Obama Administration in one of the many cases claiming companies with religious owners can defy federal birth control rules, and Judge Richard Posner, a highly idiosyncratic judge and vocal critic of conservative Justice Antonin Scalia. The likelihood of a pro-equality ruling in the Seventh Circuit is probably close to a toss up, to be decided by who is assigned to the panel that hears the case.
  • Sixth Circuit (Kentucky, Michigan, Ohio and Tennessee): More than half of the Sixth Circuit’s active judges were appointed by President George W. Bush (although one of them is a Democrat appointed as part of a compromise with the Senate). In total, Republicans control 9 of the court’s 15 active judgeships. So this is a very conservative court. Moreover, it is also a court riven by acrimony among the judges that largely breaks down along partisan lines and that occasionally spills over in the court’s published opinions. While there is at least one very prominent example of a Sixth Circuit conservative rejecting a conservative legal argument in a high profile lawsuit, the Sixth Circuit remains a very ideological and very divided court. Marriage equality’s best hope of a victory in the Sixth Circuit is a lucky panel assignment that includes at least two Democrats. (Disclosure: the author of this post clerked for Judge Eric L. Clay of the Sixth Circuit in 2007 and 2008.)
  • Fifth Circuit (Louisiana, Mississippi and Texas): The Fifth Circuit isn’t just a very conservative court — 10 of its 15 active judges are Republican appointees — it also includes some of the most unapologetic and ideological conservative judges in the country. Five Fifth Circuit judges joined an opinion saying that a man could be executed even though his lawyer slept through much of his trial. The court once sanctioned a high school cheerleader after she sued the school that told her to cheer for her alleged rapist. Its former chief judge is currently under investigation for allegedly claiming that African Americans and Hispanics are predisposed to violent crime. Supporters of marriage equality should expect to lose in the Fifth Circuit.

Ultimately, if at least one court of appeals rules in favor of equality and at least one backs discrimination, then that will all but guarantee that the Supreme Court will agree to decide this issue. As a general rule, the Supreme Court likes to hear cases where one federal circuit court disagrees with another on the same question of law.