A three-judge-panel of the 6th Circuit Court of Appeals today upheld bans on same-sex marriage in Kentucky, Michigan, Ohio, and Tennessee. The opinion, issued after appeals from district court rulings in all four states, creates a widely anticipated circuit split between the 6th Circuit and four other Courts of Appeals. These courts have ruled against such bans, increasing exponentially the likelihood that the U.S. Supreme Court will finally take up the issue of whether the Constitution prohibits state laws that limit marriage to opposite sex couples. Since the Supreme Court issued its decision in Windsor v. United States in June of 2013, there have been almost 40 pro-marriage equality decisions handed down at the state court and federal level, including four appellate courts.
On October 6, the Supreme Court declined to review appeals from those cases, effectively allowing same-sex marriages to proceed in those states. It is hard to imagine that the Supreme Court would have declined to review those cases if a majority of the Court favored upholding the bans, as their decision not to review those decisions greatly expanded the right to marry a same-sex partner from 19 states to potentially 30 states, including states that have not allowed same-sex marriage, but that fall under the jurisdiction of a Circuit Court that has ruled against a marriage ban.
Justice Ruth Bader Ginsburg, one of the leading liberal voices on the Court, said in September in an interview that the Supreme Court had “no need [for us] to rush” on same-sex marriage, barring a split between two circuit courts, which she correctly anticipated at that time might come from the conservative-leaning 6th Circuit. Historically, the Supreme Court has been inclined to review cases in which a circuit split has arisen, disliking leaving opposing and confusing precedents in different parts of the country.
According to the decision, written by conservative George W. Bush-appointee Jeffrey Sutton, judges do not have the option to “poll” the three judges on the panel, “or for that matter, all federal judges, about whether same-sex marriage is a good idea.” Instead, he suggests, the only option available to judges is to decide whether the Fourteenth Amendment prohibits a state from defining marriage as a relationship between one man and one woman. Sutton also suggests that Baker v. Nelson, a case appealed from the Minnesota Supreme Court to the Supreme Court of the United States, is binding precedent on lower courts, and has not been overturned. The precedential status of Baker, which denied appeal from the Minnesota Supreme Court “for want of a substantial federal question,” is very much in debate.
The notion that federal courts are prohibited by binding precedent from hearing challenges to marriage laws is belied by the fact that the Supreme Court declined to continue stays of pro-marriage decisions in Utah, Virginia, Wisconsin, Oklahoma, and Indiana, and by doing so, cleared the way for decisions that do not rely on and in fact contradict Baker to take effect.
The 4th, 7th, 9th, and 10th Circuit Courts of Appeal all declined to use Baker v. Nelson as precedent, and the Supreme Court itself declined to use Baker as controlling precedent in the two cases it undertook in 2013, concerning California’s Proposition 8 and the federal Defense of Marriage Act. Proponents of marriage equality indicate instead that lower courts should rely instead on doctrinal developments that have occurred in the 43 years since Baker v. Nelson.
In a scathing dissent, Judge Martha Daughtrey claims the majority ” treats both the issues and the litigants here as mere abstractions. Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win “the hearts and minds” of Michigan, Ohio, Kentucky, and Tennessee voters to their cause.” Judge Daughtrey, an appointee of Bill Clinton, questioned the validity of the arguments presented by the states involved that marriage ought to be regulated by states in order to preserve a “channel” for “unintended offspring.” A skeptical Daughtrey observed, “How ironic that irresponsible, unmarried, opposite-sex couples in the 6th Circuit who produce unwanted offspring must be “channeled” into marriage and thus rewarded with its many psychological and financial benefits, while same-sex couples who become model parents are punished for their responsible behavior by being denied the right to marry.”
In Alaska, federal judge Timothy Burgess, also an appointee of George W. Bush struck down Alaska’s constitutional ban on same-sex marriage on October 12, 2014 in Hamby v Parnell, declaring the laws to be in violation of the rights to Equal Protection and Due Process protected by the U.S. Constitution, and enjoined the state from enforcing them. Governor Sean Parnell, currently locked in a too-close-to-call gubernatorial race against independent Bill Walker, immediately announced his intention to appeal the case, and also sought an emergency stay of the decision. The judge who issued the decision declined to stay his ruling, as did the Ninth Circuit, unconvinced by state arguments that a stay would prevent irreparable harm to Alaska. As of October 17, the Supreme Court declined a stay pending appeal in this case, allowing marriages to proceed.
Five days before the decision in Alaska, a three judge panel of the 9th U.S. Circuit Court of Appeal, which includes Alaska, issued a unanimous opinion striking down marriage bans in Nevada and Idaho in Latta V. Otter Since then, and following an unsuccessful application for a stay pending appeal which would have tied up same-sex marriages in Alaska for months, the State has announced its intentions to appeal the district court ruling to the Ninth Circuit, and has joined Idaho in its request for an en banc review, which would involve a hearing of the case by eleven active judges, instead of the usual three. Briefs from both sides are due to be submitted to the 9th Circuit by November 12.
If en banc review is declined, the next step in the appellate process is an appeal to the Supreme Court. That decision will most likely be made by the next occupant of the Alaska Governor’s mansion, which was in doubt tuesday night. Incumbent Governor Sean Parnell, seeking a second full term against independent Bill Walker, was down by just over three thousand votes as of election night.
At this point, all eyes are on the Supreme Court, which could take up the case in January and issue a decision affecting marriage equality as late as June of 2015.