When same sex marriage was last in the news, the U.S. Supreme Court had declined to review decisions striking down bans on same sex marriage from the first three circuits of the U.S. Court of Appeals to address the issue since the U.S. Supreme Court invalidated part of the Defense of Marriage Act.  Shortly afterward, the Ninth Circuit made the count 4-0.

Today the U.S. Court of Appeals for the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) made the count 4-1. Aside from the impact on the residents of these four states, this decision changes the picture in a legally significant way.  While there is no requirement that the U.S. Supreme Court take any case, the U.S. Supreme Court in its own rules suggests that it sees the need to resolve splits between the various circuits of the U.S. Court of Appeals on issues of federal law as a primary consideration in determining which cases to hear.  Five weeks ago when all of the appellate courts had reached the same result, there was no split to resolve.  Today, there is.

At this point, the couples in these cases (the Sixth Circuit heard six separate cases from all four of its states together) have a decision to make as to the next step.  Which option they take might matter to folks in the other courts still considering appeals on this issue.

Option Number 1 is to file a motion for rehearing.  Because of the number of appeals filed in federal court each year, the federal court of appeals is divided into regional circuits and, even within those circuits, judges hear cases in panels of three.   To assure consistency in the decisions within a circuit (and to avoid a meritorious claim failing due to bad luck in the process of randomly assigning cases to panels), parties can file a motion to have the case re-heard by all of the judges of the court.  While these motions are rarely granted, there is no legal downside to requesting a rehearing.  The very act of filing a motion for rehearing extends the deadline for requesting the U.S. Supreme Court to take the case.

Option Number 2 is to give up the chance for rehearing and proceed directly to the U.S. Supreme Court.  There is no legal advantage to this option, but there is a practical advantage — it gets your case to the U.S. Supreme Court sooner.

This is where other considerations enter into the equation.  First, while the cases were heard together, these are still technically six separate cases.  Each set of couples get to make their own decision on what they want to do next.  Similarly, there are four sets of state officials who get to decide how to respond.

Second, aside from the fifteen days to make this decision, there is a second time crunch.  The U.S. Supreme Court briefing rules effectively require the U.S. Supreme Court to accept a case by mid-January in order to hear the case in April and decide the case by the end of June.  While the proponents of same sex marriage would prefer a favorable decision from the U.S. Supreme Court sooner rather than later, it’s not clear that trying to cram this case onto the April argument calendar is the best way to get a favorable decision.  Even if the couples want that quick of a decision, the states will have thirty days to respond to any application and it is not unusual for parties to get an extra thirty days to file the response.  Thus even if the couples want to force a decision this term, the states could push it off to next term without any unusual tactics.  Under these circumstances, the delay from filing and losing a motion for rehearing will probably have little impact on the Supreme Court hearing the case in Fall 2015.

Third, given the composition of the full Sixth Circuit, there is a decent chance that a motion for rehearing would be granted.  If a rehearing is granted, the full Sixth Circuit might find in favor of the couples.  While this would be good for couples in these four states, it would eliminate the split in the circuit and, thereby, make it less likely that the Supreme Court would take one of these cases.

Fourth, while a split between the circuits is a factor in the U.S. Supreme Court’s decision to take a case, it does not have to take any case.  In not taking the earlier applications, the Supreme Court Justices potentially gave a sign that they do not want to take any same sex marriage cases at this time (as opposed to a sign that they approved of the lower court decisions in the earlier case).   By not asking for rehearing, the couples give up a chance for getting relief from the Sixth Circuit without any assurance that the Supreme Court would take their case.  Additionally, if the Supreme Court declines to take a case upholding the bans on same sex marriage, such a decision would clearly signal that the Supreme Court has not yet taken a position on the validity of such bans (encouraging the remaining, more conservative, circuits to uphold the bans in their states).

Fifth, there is a school of thought that the Supreme Court is not going to take a case on whether a state has to accept same sex marriage until almost every state allows same sex marriages.  If that is the case, the only chance that these couples has is a motion for rehearing.

Sixth, there are actually two separate issues in these cases.  Some of the cases involve couples seeking the right to marry in their home state.  The rest of the cases involve the more limited issue of whether a state has to recognize a same-sex marriage performed in a state that allows same-sex marriage.  This second issue is more narrow, and some think that the swing votes on the Supreme Court might be more willing to consider this issue (which after all would merely extend the earlier ruling that the federal government has to recognize such marriages to the state governments).   Thus, it is possible that the couples seeking “recognition” might decide to go directly to the Supreme Court (after all, if the full Sixth Circuit recognized a right to marry these couples would still effectively win) while the parties seeking the right to marry ask for rehearing by the Sixth Circuit.