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8th Cir. Will Hear Expedited Same-Sex Marriage Appeals

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By Mark Wilson, Esq. on February 04, 2015 12:37 PM

In what The Associated Press called "a surprise," the Eighth Circuit Court of Appeals announced that it would hear same-sex marriage appeals from South Dakota, Arkansas, and Missouri in a consolidated oral argument held the week of May 11 in Omaha, Nebraska.

The court agreed not only to consolidate all the cases, but to expedite the appeals. The court's ruling will definitely be influenced by the U.S. Supreme Court's opinion in the Sixth Circuit same-sex marriage cases, which it will hear some time this term.

Speed This Up

In November, federal district judges in two of the three states had already determined that state bans on same-sex marriage were unconstitutional, in addition to numerous state courts that had also determined the state laws were unconstitutional. South Dakota's same-sex marriage ban was struck down just weeks ago in January. All three orders were stayed pending final disposition at the Eighth Circuit Court of Appeals.

South Dakota Attorney General Marty Jackley pushed for the expedited schedule, saying that the Eighth Circuit needs to have an opinion on the books before the U.S. Supreme Court, just in case the High Court issues a narrow opinion that doesn't address all possible same-sex marriage issues, the AP reported.

The U.S. Supreme Court will hear oral arguments over gay marriage in April and, if it's anything like U.S. v. Windsor, that opinion will be the very last one the Court issues before the justices head off for summer vacation at the end of June.

An Opinion That Fast?

It's unlikely the Eighth Circuit will have an opinion inside of two months, but it happened at the Seventh Circuit, which determined Wisconsin and Indiana's bans weren't legal only nine days after oral argument.

There's also very little that same-sex marriage opponents could argue that we haven't heard before: Baker v. Nelson, the state interest in encouraging children to be born, and raising children in heterosexual households have all been thoroughly rebuffed at every level of state and federal court (well, almost every level of federal court).

The Eighth Circuit would be forgiven for having a draft opinion already prepared by the time oral arguments came around, as the California courts of appeal do. Every argument in favor of same-sex marriage has so far been the same, as has every argument against. The Eighth Circuit doesn't need to take very much time write an opinion, but we'll just have to wait and see what it comes up with.

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