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.

Supreme Court tackles fish case

The Supreme Court spent time yesterday immersed in arguments about an unusual topic: fish. Specifically, the case before the Court involved provisions of the Sarbanes-Oxley Act as applied to a fisherman who had caught fish smaller than was permitted by federal law and then disposed of some of them to avoid being charged. The Act was passed in response to corporate scandals involving the destruction of documents to avoid prosecution. The significant provision in this case, as reported by SCOTUS Blog is the provision making it a crime to "'destroy, mutilate, conceal, or cover up any record, document, or tangible object' with the intent to influence or obstruct a federal investigation under 'any matter within the jurisdiction' of any federal agency." The question at issue? Whether a fish qualifies as a "tangible object" under this law.

The case began with the actions of Florida fisherman, John Yates, who was operating a commercial fishing vessel off the Florida coast in 2007 when he was boarded by a state conservation officer who was conducting an inspection. The officer found a batch of red grouper that were too small to be caught under federal laws and told the captain and crew to load them into a crate and leave them there until they reached port, when they would be taken by federal agents. When the vessel docked and the fish were evaluated, however, there were only 69 smaller fish out of the 72 the state conservation officer initially found. A crew member told federal officials that the captain had instructed them to throw the smaller fish overboard.

The captain was convicted of destroying the fish under the Sarbanes-Oxley Act's anti-shredding provision and sentenced to 30 days in prison. Yates could have been sentenced to up to 20 years in prison under the Act. According to the New York Times, the justices seemed skeptical as to whether the law applied to Mr. Yates and critical of the decision to prosecute him at all, citing concerns with governmental overreach and issues of prosecutorial discretion. Justice Ginsburg inquired whether the Department of Justice gives guidance on what charges federal prosecutors should bring in this sort of case, given that Yates could have been charged with violating a different statute which had a maximum penalty of five years, and Justice Scalia questioned, “What kind of a mad prosecutor would try to send this guy up for 20 years?”

SCOTUS Blog offers a detailed plain English description of yesterday's arguments, here. For additional information, see this article from the Washington Post, and this one from the ABA Journal.

Finding of probable cause required before issuing arrest warrant, rules Ohio Supreme Court

The Ohio Supreme Court ruled today that a "neutral and detached magistrate" or other person eligible under Ohio's criminal rules must find probable cause before issuing an arrest warrant under the Ohio Constitution and the 4th Amendment to the U.S. Constitution. The case revolves around arrest warrants issued for defendant Brandon Hoffman. The Toledo Police Department obtained arrest warrants for Hoffman from the court clerk's office, which did not properly make a finding of probable cause before issuing the warrants. The arrest warrants were for three misdemeanor offenses: theft, criminal damaging and "house-stripping."

Toledo police were subsequently called to a residence where they found the body of Scott Holzhauer. Neighbors advised police that Hoffman had recently visited Holzhauer. When police ran a check on Hoffman they learned about the unrelated arrest warrants and decided to execute them. Upon arrival at Hoffman's residence they were allowed inside, where they found a gun and cell phone belonging to Holzhauer. Based on this information the officers obtained a search warrant which led to the collection of additional evidence. Holzhauer was charged with aggravated murder and aggravated robbery. 

At trial he moved to suppress all evidence obtained as a result of the arrest warrants on the grounds that they were obtained without a finding of probable cause. The trial court agreed that the arrest warrants were improper, but found that it was bound by a prior decision of the Sixth District Court of Appeals, State v. Overton, which upheld the validity of search warrants that were virtually identical to those at issue here. Hoffman pleaded no contest and was convicted of both charges. On appeal, the Sixth District agreed that the search warrants were improper based on the lack of a probable cause finding and overruled aspects of Overton that conflicted with that ruling. The Sixth District found that because the police acted in good faith on the validity of the arrest warrants, however, that any evidence found as a result of their issuance did not need to be excluded.

The Ohio Supreme Court affirmed the decision of the Sixth District, holding that "a neutral and detached magistrate or other person authorized under Crim.R. 4(A)(1) must make a
probable-cause determination before an arrest warrant can be issued" and finding that this did not happen in Hoffman's case. The Court went on to hold that despite the improper search warrants, the evidence collected should not have been excluded, stating that, "Ultimately, the arrest warrants must be viewed as improperly issued because although deputy clerks had a checklist to follow, a probable-cause determination was never made, and the complaint was rubber-stamped with no questions asked. The arresting officers themselves, however, had no reason to question or doubt the validity of Hoffman’s warrants, and they acted in good faith in relying on them. Suppression of evidence here will not serve the purposes of the exclusionary rule."

Justice Lanzinger wrote the majority opinion and was joined by Justices O'Connor, Kennedy, French and O'Neill. Justice O'Donnell wrote a concurring opinion, stressing that the Toledo Municipal Court must amend its process for issuing arrest warrant in light of today's ruling. Justice Pfeifer dissented, arguing that the magistrate signing off on the warrants served as a mere rubber stamp for police and that the Toledo Police Department did not have a good faith belief that the warrants were valid. As such, he concluded that any evidence arising from them should be excluded.

For more information about the case see this article from Court News Ohio.