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Appeals Courts Ready to Hear Arguments in Same-Sex Marriage Cases

Three state bans on same-sex marriage will be decided on by two federal appellate courts, moving the questions closer to the Supreme Court. Federal district judges have defeated same-sex marriage bans in six states during a four-month period, according to the National Law Journal.

“Federal judges in every area of the country, of all political affiliations — and every one has ruled the same way,” said David Boies of Boies, Schiller & Flexner. Boies is working on the case challenging the Virginia ban on same-sex marriage.

The Court of Appeals for the Tenth Circuit is hearing the Kitchen v. Herbert case. Lawyers are asking for Utah to bring back a voter-approved amendment to the state constitution. The three-judge panel heard arguments last week, but did not issue a ruling. The same judge panel will hear the case of Bishop v. Smith on April 17. This case centers around the state of Oklahoma trying to reinstate its constitutional ban on same-sex marriage.

The Fourth Circuit will hear two cases on May 13 regarding the state of Virginia. Those two cases are Bostic v. Schaefer and the class action Harris v. Rainey.



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Some same-sex couples have not been permitted to marry in certain states even though they have found success in district courts. Paul Smith, from Jenner & Block, said, “Nobody is getting any relief because everything is stayed [because of the appeals],” he said. “There will be a lot of pressure to get this resolved.”

Austn Nimrock, from the Alliance Defending Freedom, said, “At the core of almost all of these cases are two claims.”

The first is that the equal protection and due process guarantees in the 14th Amendment prohibit states from denying same-sex couples the right to marry.

The second is that the full-faith-and-credit clause in the United States Constitution forces states to give legal effect to gay marriages performed in other states.

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