U.S. District Judge William Duffey paved the way for the attorneys in the Georgia same-sex marriage case to take their case directly to the 11th Circuit of Appeals as court documents continue to fly in one of the last states to get a court ruling on marriage equality.

Duffey issued late Jan. 29 an order that would permit the 11th Circuit to accept an interlocutory appeal of his Jan. 8 order denying the state’s motion to dismiss the case. Ordinarily, such orders are not immediately appealable. The order was issued in response Attorney General Sam Olens’ motion to stay the case until after the Supreme Court rules on same-sex marriage bans. Lambda Legal this week agreed with the motion to stay.

This is significant because now the Lambda Legal attorneys may get the chance to argue that Georgia same-sex couples have the constitutional right to marry directly to the higher court, which includes Georgia, Florida and Alabama. Federal judges in Florida and, just last week, Alabama, have recently struck down their state’s same-sex marriage bans, ruling them unconstitutional.

Duffey, in his order denying the state’s motion to dismiss, disagreed with most of Lambda Legal’s arguments, including that same-sex couples have the constitutional and fundamental right to marry.

“Allowing an interlocutory appeal of the Court’s January 8th Order permits the parties to support or challenge the Court’s reasoning or conclusions in the January 8th Order, including whether the Court has subject-matter jurisdiction over this action and whether Plaintiffs have a fundamental right to same-sex marriage under the United States Constitution,” Duffey writes in the Jan. 29 order.

Lambda Legal intends to seek an appeal quickly.

“We certainly disagree with parts of his earlier opinions, such as constitutional right to marriage. We think he got it wrong and a number of our claims he denied,” Lambda Legal Senior Attorney Beth Littrell told GA Voice. “We intend to seek an appeal within days.

“With the certification of the interlocutory appeal, [Duffey] acknowledges the opinions he made in his motion to dismiss are out of step of with the majority of courts across the country and with other courts in the 11th Circuit,” Littrell added. “We think it’s an opening and opportunity for us to move our case forward and hopefully for a definitive resolution faster.”

Merritt McAlister, president of the Stonewall Bar Association and a partner at King & Spalding, said it was a “little unusual” for a judge to certify an interlocutory appeal without first being asked by one of the parties in the case to do so.

“I think he wants the 11th Circuit to consider his decision when deciding these issues for the Circuit,” she told GA Voice. “He has taken more conservative legal views with the upshot being he’s disagreed with the Florida court on the basic issue of the fundamental right for same-sex couples to marry.”

Duffey also knows that what the 11th Circuit decides on the Florida case, and possibly Alabama, will impact his case in Georgia and he is saying that the 11th Circuit should consider all the cases together, McAlister explained.

“He thinks the 11th Circuit should be able to consider the cases from Georgia, Florida and Alabama together. That makes sense for judicial economy,” she added.

“And it would be better for everyone in Georgia if the 11th Circuit disagrees with Judge Duffey on the issue of a fundamental right for same-sex couples to be able to marry,” she said.

From there it would be a very short step to the ban falling and, if the ban falls, then marriage equality would become legal in Georgia.

However, the 11th Circuit may not take up the appeals before the Supreme Court rules on marriage equality, McAlister noted.

“What is less clear is what the 11th Circuit is going to do because its work may be mooted by the Supreme Court. It may decide to wait on its own for the Supreme Court to rule,” she said.

“Although Judge Duffey wants the 11th Circuit to weigh in on these issues, ultimately, in my view, the questions before the Supreme Court will likely decide all of these cases. It’s highly unlikely the Supreme Court won’t determine the outcome of all of the cases pending in the 11th Circuit. The Supreme Court broadly worded the questions it will address, and it won’t want to revisit the issue again,” McAlister said.

Same-sex marriage is legal in 35 states plus the District of Columbia, and in Missouri, same-sex marriages performed in other states are legally recognized. Georgia, Nebraska and North Dakota are the only states that have not ruled on same-sex marriage.

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