FARGO – The U.S. Supreme Court is set to meet privately today to consider for a second time in recent months whether to hear any cases regarding the constitutionality of state bans on gay marriage – a decision that may affect the future of a federal suit challenging the ban in North Dakota.
There’s been no action in the North Dakota suit since early September, when both sides submitted their final briefs and U.S. District Judge Ralph Erickson took the case under advisement, court records show.
Joshua Newville, an attorney who filed the suit on behalf of seven gay couples, said he’s unsure why Erickson has not yet issued an opinion but noted that similar suits in other states, including Mississippi, Arkansas and Missouri, have moved at a quicker pace.
At the moment, the Supreme Court has five cases pending concerning same-sex marriage bans in Ohio, Tennessee, Michigan, Kentucky and Louisiana. If the court agrees to take one or more of the cases, it’s likely the North Dakota case would remain on hold until the end of June when the justices issue a ruling, Newville said.
If the justices decide not to hear one of the cases, Newville expects Judge Erickson would soon take action in the North Dakota case. After the justices meet, an announcement could be made as soon as today.
As recently as October, the Supreme Court decided not to intervene in the gay marriage issue when seven separate cases were pending. That decision not to hear the cases had huge legal implications because it meant gay marriage went ahead in five states and paved the way for it to begin in several others.
Prior to the court’s action in October, gay marriage was legal in just 19 of the 50 U.S. states. Now it is legal in 36.
Newville said the delay in the North Dakota case has had serious consequences for his clients and other same-sex couples. He gave the example of Celeste Carlson and Amber Carlson-Allebach, a Fargo couple named in the suit, who had a son in November.
The couple, who got married in Minnesota in 2013, has had to take parenting tests and undergo criminal background checks through an adoption agency so Carlson-Allebach, who was not the birth mother, can be a legal parent to their baby, Carlson said.
The couple, who have two other children, ages 5 and 3, look forward to a less complicated life if the Supreme Court strikes down bans on gay marriage.
“The many hundreds of protections that other folks who are married see right now, we certainly look forward to having those,” Carlson said.
Newville said that if his side ultimately prevails, he will petition the state of North Dakota to pay attorneys’ fees that he estimates will be hundreds of thousands of dollars. The North Dakota Attorney General’s Office, which is representing the state in the suit, declined to comment Thursday.
Reuters contributed to this report.