6th Circuit upholds same-sex marriage bans in four states

The Court of Appeals for the Sixth Circuit issued a decision yesterday upholding same-sex marriage bans in four states: Ohio, Kentucky, Michigan and Tennessee. This decision came as a surprise to many, as the Supreme Court refused to hear appeals of other circuit court decisions striking down similar bans on October 6, tacitly allowing same-sex marriage to become the law in many states. Since this refusal by the Supreme Court the total number of states allowing same-sex marriages has climbed to 32.

The decision, penned by George W. Bush appointee Judge Jeffrey Sutton, addresses multiple constitutional issues, including the issue of the 1972 Baker precedent, which we discussed at length in August, and ultimately concludes that the decision should be left to the people. Sutton wrote, "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. 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."

A few key issues in the decision:

Sutton found the Court's one line decision in Baker v. Nelson (that there was "no substantial federal question" involved in a challenge to Minnesota's laws limiting marriage to members of the opposite sex) was binding on the 6th Circuit, and was not persuaded that "doctrinal developments" from later cases involving issues of gay rights overruled that precedent.

Sutton stressed that the Supreme Court's refusal to hear appeals from cases that invalidated same-sex marriage bans was not binding on lower courts, and that because the arguments posited in these cases were all different, we do not know why the Supreme Court refused to hear the cases or under what theory same-sex marriage may be found valid. Sutton wrote, "The Court’s certiorari denials tell us nothing about the democracy-versus-litigation path to same-sex marriage, and they tell us nothing about the validity of any of these theories."

The opinion focuses largely on tradition and the historical definition of marriage and finds that the states have put forth rational reasons for limiting marriage to opposite sex couples, particularly couched in procreation. Sutton states that "By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring." He argues that whether these justifications for upholding traditional marriage make up for the costs to same-sex couples should be decided by legislators, not judges.

Sutton also found that same-sex marriage was not a fundamental right and thus did not require a strict scrutiny analysis. He distinguished Loving v. Virginia, which found that marriage was a fundamental right, by stressing that the de facto definition of marriage at issue in Loving was a union between members of the opposite sex. Sutton asserts that Loving did not change the definition of marriage and points again to the 1972 Baker case as evidence of this.

Sutton found that states did not need to recognize the valid same-sex marriages performed in other states as there is a rational basis for a state to make its own definition of marriage.

Judge Sutton was joined by Judge Deborah Cook in his opinion. Judge Martha Daughtery wrote a vigorous dissent, in which she stated:

"More than 20 years ago, when I took my oath of office to serve as a judge on the United States Court of Appeals for the Sixth Circuit, I solemnly swore to “administer justice without respect to persons,” to “do equal right to the poor and to the rich,” and to “faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States.” See 28 U.S.C. § 453. 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, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams."

This decision is the first out of a federal circuit that upholds states' same-sex marriage bans and will almost certainly send the issue directly to the Supreme Court. Although thus far the Court has refused to hear the cases, the split that now exists among circuits may force the issue and prompt the Court to take action. SCOTUS Blog presents a full discussion of the possible avenues and steps involved for the Court to take up the case, here.