The US supreme court has declined to pick up one of the five same-sex marriage cases currently up for review, though the decision is not seen as an indicator of the court’s interest in taking up the issue.
The court on Monday denied judicial review on a case from Louisiana that challenges the state’s ban on same-sex marriage and law against recognizing such marriages conducted out of state. The case is waiting for a ruling in the fifth US circuit court of appeals, which would make the supreme court less likely to intervene.
Petitions from Kentucky, Michigan, Tennessee and Ohio still sit in front of the nation’s highest court. Unlike the Louisiana case, these have already been through a federal appellate court and are therefore more likely to be reviewed.
A decision on these cases could be made as early as Friday, after the court’s next private conference. It could also continue to postpone a decision on whether it will pick up one, a few, all or none of the remaining same-sex marriage cases.
The four cases went through the sixth US circuit court of appeals, which upheld the state’s bans in November, despite lower court decisions striking them down.
This decision made the sixth circuit the first federal appellate court to rule against marriage equality since the landmark June 2013 decision that struck down parts of the Defense of Marriage Act (Doma). The sixth circuit’s ruling also created a circuit split on the issue, making the supreme court more likely to intervene.
The conservative-leaning fifth circuit is also thought to lean toward upholding the bans, though the ruling is much more uncertain following oral arguments on Friday. The swing vote on the three-judge panel, Patrick Higginbotham, seemed skeptical of the reasoning behind defending the ban.
MSNBC’s Emma Margolin attended the oral arguments and said that judge Higginbotham “was far less sympathetic” to the lawyers defending the bans than many had expected.
“At times, it was difficult to hear what the 77-year-old judge was saying because he so frequently leaned back in his chair away from the microphone and rubbed his face, as though watching some kind of entertaining show or, perhaps, getting tired of it,” Margolin said. “When he did speak up, it was usually to poke holes in the states’ arguments.”
The panel reviewed the Louisiana case, as well as one from Texas and another from Mississippi. Federal district judges had ruled against the states’ bans for the latter two cases.
Louisiana is the only state where a federal judge has ruled that a state same-sex marriage ban is constitutional since the Doma decision. Seven couples are plaintiffs in the Louisiana case, Robicheaux v George.
Same-sex marriage is now legal in 36 US states and Washington DC.
