Last week, we reported that a parallel challenge to Virginia's gay marriage ban was being put on hold pending the Fourth Circuit's decision in Bostic v. Schaefer. The Bostic case was the first to be decided, and once the Fourth Circuit issues a ruling, will bind the rest of the state, as well as the rest of the circuit.
It's unsurprising news, then, that a district court in North Carolina appears to be holding a challenge to that state's barely three-year-old ban on gay marriage until after the Fourth Circuit rules. The American Civil Liberties Union, however, is suing to speed up the process, arguing that their clients' health issues make urgency a must.
4th Circuit's Timeline
Oral arguments are set for next month. Expect the court to take a few months to mull over the issue, then issue an opinion some time in the summer. Of course, the losing party will almost certainly request an en banc rehearing, followed by an inevitable petition for certiorari to the U.S. Supreme Court, if the nation's highest court doesn't rule on the issue first.
(The big money is on Michigan or Utah reaching SCOTUS first, as Utah's case was argued earlier this week to a Tenth Circuit panel, while Michigan officials asked to skip straight to en banc, which would put them on an even faster fast track.)
In other words, it'll be awhile before there is a conclusive answer in Bostic. And since the Supreme Court has already set the precedent of holding same-sex marriage decisions pending appeals, until a final answer is had in Bostic, the North Carolina case will likely languish on the docket, even if a Fourth Circuit panel or en banc court issues a ruling.
ACLU Wants N.C. SSM ASAP
That's a problem for the ACLU's clients. One of the clients, Esmeralda Mejia, a retired Army major and decorated Desert Storm veteran, has fought cancer for more than 20 years, reports The News & Observer. She's lost part of a lung and three ribs, received a liver transplant in 2008, takes a heavy battery of drugs, and may not survive long enough to wait for the Bostic resolution.
And because North Carolina does not recognize her marriage, neither her spouse nor her 7-year-old adopted son will receive any of her veteran's or Social Security benefits.
Another couple profiled by the Observer has an adopted son with cerebral palsy, and since he is the legal child of only one of the women, he received Medicaid instead of his other mother's private insurance, which would provide better care.
For both of these couples, a third couple that worries about their marriage being recognized on death certificates, and countless other couples in the Fourth Circuit, Bostic can't come quick enough. We'll see if the ACLU's suit pushes the local court to speed things up. Even if it does, will inevitable appeals, and holds pending appeals, nullify the ACLU's efforts?
- SSM Litigation: Carolinas and the Effect of the Virginia Opinion (FindLaw's U.S. Fourth Circuit Blog)
- 5 Takeaways From Virginia's Same-Sex Marriage Decision (FindLaw's U.S. Fourth Circuit Blog)
- Half-Measures: How Long Before Marriage Returns to SCOTUS? (FindLaw's U.S. Supreme Court Blog)