A federal appeals court on Thursday ruled that bans on same-sex marriage in each of the four states within its jurisdiction are constitutional, once again opening up the possibility for the U.S. Supreme Court to weigh in on the issue.
In a 2-1 decision, a three-judge panel on the U.S. Sixth Circuit Court of Appeals ruled that prohibitions on same-sex marriage in Michigan, Ohio, Kentucky and Tennessee pass constitutional muster.
The 42-page majority opinion was written by U.S. Circuit Judge Jeffrey Sutton, an appointee of George W. Bush who was seen as the panel’s swing vote on marriage.
Sutton bases much of the ruling on his determination that bans on same-sex marriage pass rational basis review, maintaining the democratic process should decide the marriage issue, not the courts.
“When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers,” Sutton said. “Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.”
Although numerous other courts have determined laws against on same-sex marriage are unconstitutional based on legal precedent set by the Supreme Court’s decision against the Defense of Marriage Act, Sutton writes the lower courts are instead controlled by Baker v. Nelson, a 40-year-old case seeking marriage equality the Supreme Court refused to hear.
“The Court has yet to inform us that we are not, and we have no license to engage in a guessing game about whether the Court will change its mind or, more aggressively, to assume authority to overrule Baker ourselves,” Sutton writes.
The decision reverses the opinions of district judges who had previously ruled against bans on same-sex marriage in each of the six cases before the Sixth Circuit. While the three lawsuits in Michigan and Kentucky sought outright marriage equality, three cases filed in Ohio and Tennessee sought state recognition of gay nuptials performed out of state.
Sutton was joined in the decision by U.S. Circuit Judge Deborah Cook, another appointee of George W. Bush.
Writing the dissent was U.S. Circuit Judge Martha Daughtrey, a Clinton appointee who accuses the majority of refusing to take up its responsibility to guard the constitutional rights of U.S. citizens.
“Today, my colleagues seem to have fallen prey to the misguided notion that the intent of the framers of the United States Constitution can be effectuated only by cleaving to the legislative will and ignoring and demonizing an independent judiciary,” she writes. “Of course, the framers presciently recognized that two of the three co-equal branches of government were representative in nature and necessarily would be guided by self-interest and the pull of popular opinion. To restrain those natural, human impulses, the framers crafted Article III to ensure that rights, liberties, and duties need not be held hostage by popular whims.”
The decision makes the Sixth Circuit the first federal appeals court in the wake of the DOMA ruling to uphold bans on same-sex marriage. Each of the other circuit courts that have ruled on the issue — the Tenth Circuit, the Fourth Circuit, the Seventh Circuit and the Ninth Circuit — found a constitutional right to marry for same-sex couples.
Chad Griffin, president of the Human Rights Campaign, said in a statement the two judges in the majority “will forever be cemented on the wrong side of history.”
“Gay and lesbian couples in Kentucky, Michigan, Ohio and Tennessee are just as deserving of marriage equality as the rest of America,” Griffin said. “Now, more than ever before, the Supreme Court of the United States must take up the issue and decide once and for all whether the Constitution allows for such blatant discrimination. We believe that justice and equality will prevail.”
But the ruling is fairly consistent with what legal observers predicted during oral arguments in the case in August. Daughtrey was seen overwhelming in favor of marriage equality, Cook said little but seemed to support marriage bans and Sutton was perceived as a conflicted swing vote who had tough questions for attorneys on both sides.
Tony Perkins, president of the anti-gay Family Research Council, praised the Sixth Circuit for refusing to engage in what he said was interpreting the Constitution “to demand that this modern redefinition of marriage be forced on the States.”
“Where marriage is redefined, parents are increasingly finding a wedge being driven between them and their children as school curricula is changed to contradict the morals parents are teaching their children,” Perkins said. “And as more and more people lose their livelihoods because they refuse to not just tolerate but celebrate same-sex marriage, many Americans are beginning to see that this is about far more than the marriage alter, but is about fundamentally altering society.”
Now that the decision has been handed down, plaintiff same-sex couples can appeal to either full the Sixth Circuit for en banc review or file a petition before the Supreme Court.
Chase Strangio, staff attorney in the American Civil Liberties Union’s Lesbian Gay Bisexual & Transgender Project, assisted with the Ohio litigation. Calling the ruling an “outlier,” Strangio pledged the take up the case with the nation’s highest court on an expedited basis.
“We believe it’s wholly unconstitutional to deny same sex couples and their families access to the rights and respect that all other families receive,” Strangio said. “We will be filing for Supreme Court review right away and hope that through this deeply disappointing ruling we will be able to bring a uniform rule of equality to the entire country.”
Shannon Minter, legal director for the National Center for Lesbian Rights, said the decision with respect to Tennessee will be appealed, but the exact steps forward are still under consideration.
“We are certainly going to seek further review in this case,” Minter said. “We are reviewing the opinion today and will make a decision very shortly.”
Dan Canon, an attorney with the Louisville-based Clay, Daniel, Walton & Adams who represented couples in the Kentucky lawsuit, said he can’t comment specifically on the steps forward, but intends to seek review in some way.
“We are weighing our options and coordinating with other states, so we do not know what action we will take as yet,” Canon said. “We are disappointed, and we think the ruling is wrong, but we do not intend to let it go unchallenged.”
Dana Nessel, an attorney for the plaintiff couple in the Michigan marriage case, said a news conference for her clients is taking place in Ferndale, Mich., at 7:30 and a statement will be delivered at that time. According to the Associated Press, the Michigan legal team for same-sex couples is set to file a petition before the Supreme Court.
The Supreme Court had previously declined to hear cases on marriage equality, but that took place at a time when the circuit courts were unanimous in striking down bans on same-sex marriage. Now that there’s a split within the circuits, the Supreme Court may reconsider its earlier refusal hear marriage litigation and make a uniform rule on marriage nationwide.
Justices are under no obligation to take up the case, but if petitions to the Supreme Court are filed soon enough and review is granted, it could enable justices to take up the litigation in time for nationwide ruling on marriage equality by mid-2015.
Marc Spindelman, a professor at the Ohio State University’s Moritz College of Law, had an optimistic spin on the Sixth Circuit decision in terms of potential for Supreme Court review.
“By squaring off against other federal appellate decisions declaring state bans on same-sex marriage unconstitutional, the Sixth Circuit surprisingly gives marriage equality supporters something that they wanted, but that the other appellate decisions, with all their unanimity, didn’t provide: A powerful and pressing reason for the U.S. Supreme Court to hear and decide the constitutional marriage equality question nationwide,” Spindelman said.