Earlier this week, State Senate President Phil Berger and former House Speaker Thom Tillis filed a petition for review at the U.S. Supreme Court, asking the justices to overturn the October decisions by federal district court judges in North Carolina rejecting the state’s same-sex marriage ban.
The federal court rulings followed the July decision by the 4th U.S. Circuit Court of Appeals in Bostic v. Schaefer, overturning a similar Virginia ban.
Tillis and Berger then intervened in two North Carolina cases for purposes of appeal after state Attorney General Roy Cooper refused to move forward, saying that the courts had now settled the question.
A third district court judge in North Carolina has also rejected the state’s marriage ban, but did not allow the lawmakers to intervene for purposes of appeal. That case, along with the two now before the nation’s highest court, is winding its way through the Fourth Circuit but is not part of the petition for review.
In October, the nation’s highest court refused to take several appeals overturning state marriage bans, likely because at that time all of the underlying decisions reached the same conclusion and no circuit split existed.
Since then, though, the Sixth Circuit has upheld bans in Kentucky, Michigan, Ohio, and Tennessee, creating the necessary split of authority on the issue.
The justices have been considering petitions for review in cases out of each of those states and may decide as early as this Friday which, if any, they will take. If they do hear any of the appeals, argument will likely be in April with a decision expected near the end of the term in late June.
Notably, the justices did refuse on Monday to take a case out of Louisiana which, like the North Carolina cases, had not yet been reviewed by the circuit court of appeals.
As SCOTUSblog’s Lyle Denniston notes:
The Court’s denial of review in the Louisiana same-sex marriage case is not a reliable indicator of the Court’s current interest in the authority of the states to ban same-sex marriage. The couples in the Louisiana case had asked the Court to bypass the U.S. Court of Appeals for the Fifth Circuit, and take on the case without waiting. The Justices’ response probably indicates a desire not to intrude into the review by the Fifth Circuit, which held a hearing on the Louisiana case, and two others, just last Friday. The Court seldom chooses to bypass appeals courts, although it clearly has the authority to do so.
State Rep. Tim Moore, sworn in as the new House Speaker yesterday, will now take the place of Tillis in the petition. Moore has long opposed gay marriage and has said that he and his Republican colleagues “owe it to the voters” to take all steps to uphold the state’s ban.
Recent polling shows, however, that most state residents now favor gay marriage.
The petition, though filed on January 9, was not docketed by the court until Tuesday. Read it in full here.