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When is that appeal of the Texas same sex marriage ruling going to happen?

A little later than originally planned.


It’s been five months since a federal judge struck down Texas’ bans on same-sex marriage.

But Attorney General Greg Abbott says he needs more time to file a brief appealing U.S. District Judge Orlando Garcia’s February decision to the 5th U.S. Circuit Court.

Abbott’s brief was initially to the 5th Circuit on July 9, but his office has now requested — and received — two extensions. The brief is now due July 29, according to court records.

“Applicants do not seek this extension for purposes of delay, but rather so that appellate counsel Solicitor General Jonathan Mitchell has sufficient time to prepare a brief that is thorough, accurate, and helpful to the Court,” Abbott’s office wrote in a July 15 motion requesting the second extension of 10 days. “The issue in this case, the constitutionality of Texas’ same-sex marriage laws, is important and complex. The additional time would allow Mr. Mitchell to give this case the attention that it deserves. Besides this case, Mr. Mitchell also has obligations with respect to other multiple lawsuits including challenges to Texas’ voter ID laws, redistricting, an upcoming bench trial concerning Texas’ abortion laws, and a United States Supreme Court capital case undergoing merits briefing. Even with the previous seven-day extension, appellants are still within the court’s usual limit of forty days.”

Attorneys for two same-sex couples challenging Texas’ marriage bans in the case, known as De Leon v. Perry, opposed Abbott’s request for an extension.

“The Solicitor General’s vague claim of being too busy to prioritize this appeal simply does not justify further delaying this dispute,” attorneys for the couples wrote. “Appellees are suffering irreparable harm due to the violation of their Constitutional rights, and that harm should not be extended merely because nearly five months have proven an insufficient amount of time for the Solicitor General to prepare Appellants’ opening brief.”

In May, the 5th Circuit denied a request from the plaintiffs to expedite consideration of the case.

Neel Lane, one of the attorneys representing the couples, told Lone Star Q this week that Abbott’s office had given him “no clue as to why they had to seek the extension.”

“But I should add that extensions are not unusual at all,” Lane said. “A total of three extra weeks won’t be material.”

Lane said under the new timeline, his side’s response brief will be due Sept. 2, with the state‘s reply due Sept. 19. The court has not scheduled oral arguments.

You can see a copy of the request for extension at that link. The original ruling was on February 26, so it will be seven months from then till all briefs are due, assuming no further delays, then oral arguments at a later date and finally the ruling. I figure that’s at least a nine or ten-month span, optimistically putting the ruling at around the end of the year. As a point of comparison, yesterday the 10th Circuit Court of Appeals upheld the earlier ruling that struck down the Sooner State’s anti-same sex marriage law. A survey of the press releases I’ve received on this case shows that the original ruling was made on January 14, oral arguments concluded on April 17, and the ruling by the 10th Circuit was handed down on July 18, or a hair more than six months total time. That’s a month less than it’s taking Texas just to get all the briefs filed. I’m sure they’re stretched pretty thin at the AG’s office between this and redistricting and voter ID and all those other lawsuits they file against the federal government every day, but that doesn’t mean we ought to feel any sympathy for them for it. Juanita has more.

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