Lisa Keen | The Keen Files
In a decision that will compel the U.S. Supreme Court to rule on the constitutionality of bans against marriage for same-sex couples, a panel of the 6th U.S. Circuit Court of Appeals ruled Nov. 6 that it is not unconstitutional for a state to ban marriage licenses to same-sex couples or refuse to recognize marriage licenses such couples obtain from other states.
It is the first federal appeals court to make such a ruling, reversing six lower court rulings in four other states — setting it on a direct path to the U.S. Supreme Court.
Many court observers believe they know how the Supreme Court will rule: that such bans are unconstitutional. That’s because on Oct. 6, there were not even four justices willing to hear appeals in defense of such bans. And the 40-page 6th Circuit panel decision now creates a conflict among the circuits, essentially compelling the Supreme Court to make a definitive ruling on the issue.
The 2-to-1 decision from the 6th Circuit was what many had also predicted. The two Republican appointees (both by President George W. Bush) upheld the state bans; the one Democratic appointee (a Clinton appointee) voted in dissent.
Writing for the majority, Judge Jeffrey Sutton acknowledged the futility of his ruling in its second sentence: “From the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen.” But, echoing statements he made during oral arguments in August, Sutton said the approval of same-sex marriage should be “in the hands of state voters” and that the Supreme Court’s 1972 summary dismissal of Minnesota gay couple’s appeal [in Baker v. Nelson] still binds lower courts to uphold the bans by other states.
“Respect for democratic control over this traditional area of state expertise ensures that ‘a statewide deliberative process that enable[s] its citizens to discuss and weigh arguments for and against same-sex marriage’ can have free and reasonable rein.”
As for licenses granted by other states, Sutton said, “States have always decided for themselves when to yield to laws of other states.”
Susan Sommer, Lambda Legal’s director of constitutional litigation, said her group is “extremely disappointed” and that the decision “highlights the need for the U. S. Supreme Court to right this injustice.”
Freedom to Marry President Evan Wolfson said the decision was “completely out of step with the Supreme Court’s clear signal last month” and “out of step with the majority of the American people.”
He also said there are at least two rational reasons for limiting marriage to heterosexual couples: One is that government “got into the business of defining marriage … to regulate sex, most especially the intended and unintended effects of male-female intercourse.”
“It is not society’s laws or for that matter any one religion’s laws, but nature’s laws [that men and women complement each other biologically], that created the policy imperative,” wrote Sutton.
“If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage,” wrote Sutton later in the decision.
The other reason, Sutton said, is “a State might wish to wait and see before changing a norm that our society (like all others) has accepted for centuries.” Noting that Michigan voters approved its ban just one year after same-sex marriage became possible in Massachusetts, Sutton said, “A state still assessing how this has worked, whether in 2004 or 2014, is not showing irrationality, just a sense of stability and an interest in seeing how the new definition has worked elsewhere.”
While Sutton acknowledged that there are costs to same-sex couples in denying them the right to vote, that harm “demands an answer — but from elected legislators, not life-tenured judges.”
He saw no evidence that the bans were born of animus, but rather, were motivated by “fear that the courts would seize control over an issue that people of good faith care deeply about.”
“[T]he institution of marriage arose independently of [the] record of discrimination” against gays, wrote Sutton.
Oddly, Sutton’s ruling acknowledged only 19 states and the District of Columbia as having allowed same-sex couples to marry. He did not mention that another nine states began issuing licenses to same-sex couples after the Supreme Court’s refusal to hear appeals from the 4th, 7th, 9th, and 10th circuits.
Sutton said the Supreme Court’s decision in U.S. v. Windsor, striking down a key provision of the Defense of Marriage Act, had no impact on the panel majority’s ruling in the 6th Circuit cases. He said Windsor hinged on DOMA’s “unprecedented intrusion into the States’ authority over domestic relations.”
Sutton said the Supreme Court’s action in denying review of the seven appeals it refused in October expressed no opinion on the constitutionality of state bans on same-sex marriage.
“A decision not to decide is a decision not to decide,” wrote Sutton.
In dissent, Judge Martha Daughtery derided the majority opinion, saying it “wholly fails to grapple with the relevant constitutional questions” and instead occupies itself with the question of “who should decide” and exhibiting a “reverence for ‘proceeding with caution’.”
“If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate,” wrote Daughtery, “our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.”
The 6th Circuit decision and dissent addressed federal district court rulings in six cases involving state bans: DeBoer v. Snyder (Michigan), Obergefell v. Hodges and Henry v. Hodges (Ohio), Bourke v. Beshear and Love v. Beshear (Kentucky), and Tanco v. Haslam (Tennessee).
The ruling represents the marriage equality movement’s second court loss since 2012 when a federal judge in Nevada ruled against same-sex couples in Sevcik v. Sandoval. The first loss was from a federal district court judge in Louisiana in Robicheaux v. Caldwell Sept. 3.
The 5th Circuit announced on Oct. 28 that it would hear oral arguments in the Louisiana case and one from Texas on Jan. 5.
—Lisa Keen is an award-winning journalist who spent 18 years as editor of the Washington Blade. See more news from Keen and other select veteran gay journalists at keennewsservice.com.