Breaking with the actions of other appeals courts, the Sixth Circuit Court of Appeals on Thursday issued a ruling that upheld same-sex marriage bans in cases arising from cases in Kentucky, Michigan, Ohio, and Tennessee. The 2-1 ruling overturned victories in each of those states and is the first appellate loss for marriage equality after victories in the Fourth, Seventh, Ninth, and Tenth Circuits.
The opinion was written by Judge Jeffrey Sutton, appointed to the bench by President George W. Bush, and joined by Judge Deborah L. Cook, also a G.W. Bush appointee. Sutton relied on the one-sentence ruling from the 1971 United States Supreme Court ruling in Baker v. Nelson, which dismissed a marriage equality case from Minnesota “for want of a substantial federal question”, to find that Baker was still binding precedent and that his court did not have the power to overturn state-sanctioned marriage bans. This stands in stark contrast to rulings from the other four appellate courts and many other lower courts, who have almost uniformly found that the Supreme Court’s decision in Windsor last year striking down part of the Defense of Marriage Act effectively overruled Baker and that the U.S. Constitution mandates marriage equality for same-sex couples.
All well and good had the opinion ended there, but Sutton felt compelled to go beyond his “oh shucks folks, our hands are tied” line to recite some of the most regressive arguments marriage equality opponents have made. He declared the standard of review to apply to marriage equality as “rational review” which is the lowest level. If a court can come up with any reason for a law it deems rational it will uphold the law, whether the people who support the law thought of that reason or not. This is in conflict with the standard other courts have been applying to marriage equality cases, which have largely applied heightened scrutiny (the middle level) and in some cases even strict scrutiny (the level applied to laws that infringe “fundamental rights” of which marriage is one). Here Sutton found two reasons he considered “rational”: restricting marriage to mixed-sex couples encourages those couples to procreate within the bonds of marriage; and that it’s rational for a state to take a “wait and see” approach before allowing same-sex couples to marry. Such an approach he deemed not to be based in the “animus” that would make the ban unconstitutional.
In other words, he’s saying that because straight people can’t be trusted to act responsibly with their down below parts the gays have to pay for it. It’s an ugly, mean-spirited ruling that should offend gays and straights alike
The third judge, Clinton appointee Martha Craig Daughtrey, issued a blistering dissent, accusing the majority of “pay[ing] lip service to marriage as an institution conceived of providing a stable family unit ’within which children may flourish,’ [then ignoring] the destabilizing effect of its absence in the homes of tens of thousands of same-sex parents” in the Circuit. She demolished the majority’s dismissal of the animus behind the passage of the state bans and borrowed the eloquence of Martin Luther King, Jr. in addressing the danger of a “wait and see” standard: “For years now I have heard the word ’Wait!’ [But h]uman never rolls in on wheels of inevitability…[and] time itself becomes an ally of the forces of social stagnation.”
The American Civil Liberties Union has already announced its intention to appeal to the Supreme Court. Other parties may join in that appeal or they may request a hearing en banc from the full Sixth Circuit.
So what does this mean for nationwide marriage equality? Obviously it’s a setback for the four states of the Sixth Circuit and a tremendous blow to the couples seeking marriage equality there. However, it may lead to a faster resolution on the national front. Supreme Court Justice Ruth Bader Ginsburg has said in recent interviews that the Supreme Court would be more likely to take up a marriage equality case if there were a split between the circuits. This ruling creates just such a split. Justice Anthony Kennedy, who has been the swing vote on and wrote the majority opinions for our three greatest victories in the Supreme Court, will likely be the swing vote here as well. Lower courts are well aware of this and those which have ruled in favor of equality have very carefully tailored their opinions to appeal to Kennedy. If the parties act quickly and the Court does choose to take up the appeal, it is possible we will have a ruling by the end of the Court’s current session in June, the anniversary of the Windsor decision.