John M. Becker

BREAKING: Sixth Circuit Reverses Pro-Equality Rulings

Filed By John M. Becker | November 06, 2014 4:25 PM | comments

Filed in: Marriage Equality, Politics
Tags: 6th Circuit Court of Appeals, circuit split, gay marriage, marriage equality, same-sex marriage, SCOTUS, Supreme Court

smashed-wedding-cake.jpgThis just in: The U.S. Court of Appeals for the Sixth Circuit has just reversed pro-marriage equality district court rulings in Michigan, Ohio, Tennessee, and Kentucky, upholding marriage discrimination in those four states.

The ruling was 2-1, with Judge Jeffrey Sutton, a George W. Bush appointee who was seen as the panel's swing vote, writing the anti-equality opinion and fellow George W. Bush appointee Judge Deborah Cook signing on. Judge Martha Craig Daughtrey, a Clinton appointee, issued a strongly-worded dissent.

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."

Judge Daughtrey's fiery dissent begins thusly:

"The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state's constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment. Instead, the majority sets up a false premise -- that the question before us is 'who should decide?' -- and leads us through a largely irrelevant discourse on democracy and federalism. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it. Because I reject the majority's resolution of these questions based on its invocation of vox populi and its reverence for 'proceeding with caution' (otherwise known as the 'wait and see' approach), I dissent."

And then there's this zinger:

"How ironic that irresponsible, unmarried, opposite-sex couples in the Sixth 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."

She even suggested that Sutton and Cook may have created a circuit split on purpose in order to force the Supreme Court to settle the issue, writing that "Because the correct result is so obvious, one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split."

And --

"In the main, 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."

In closing, Daughtrey essentially accuses Sutton and Cook of betraying their oaths of office:

"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. 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.

"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.' 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."

It looks like the circuit split the Supreme Court has been waiting for is finally here -- the Fourth, Seventh, Ninth, and Tenth Circuit Courts of Appeal have all ruled in favor of marriage equality, and now the Sixth has come out with a conflicting ruling. They're almost certain to weigh in now and settle the question for the entire nation.

Proponents of marriage equality now have to decide whether to ask for an en banc rehearing of the case by the full Sixth Circuit first -- a request that's rarely granted -- or petition the Supreme Court directly. (Any judge on the Sixth Circuit can also request a rehearing as well.) UPDATE: The ACLU says it will appeal the Kentucky case to the Supreme Court "right away."

The decision is after the break, via Equality Case Files. Further updates will be posted after the break as well.


14-1341 #184 Michigan 6th Circuit Decision by Equality Case Files

Appeals Court Circuit Map



Reactions are coming in from LGBT civil rights groups.

Freedom to Marry:

"Today's ruling is completely out of step with the Supreme Court's clear signal last month, out of step with the constitutional command as recognized by nearly every state and federal court in the past year, and out of step with the majority of the American people. This anomalous ruling won't stand the test of time or appeal. But with discrimination still burdening too many families, and now with this split in the circuits, Freedom to Marry calls on the Supreme Court to swiftly take these cases, affirm the freedom to marry, and bring national resolution once and for all. American couples and their families should no longer be forced to fight court by court, state by state, day by day for the freedom and dignity that our Constitution promises."

Human Rights Campaign:

"The legacies of Judges Deborah Cook and Jeffrey Sutton will forever be cemented on the wrong side of history. Today the Sixth Circuit stood in the way of a path constructed by two dozen federal court rulings over the last year - a path that inevitably leads to nationwide marriage equality. Gay and lesbian couples in Kentucky, Michigan, Ohio and Tennessee are just as deserving of marriage equality as the rest of America. 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."

The American Civil Liberties Union:

"This decision is an outlier that's incompatible with the 50 other rulings that uphold fairness for all families, as well as with the Supreme Court's decision to let marriage equality rulings stand in Indiana, Wisconsin, Utah, Oklahoma, and Virginia. It is shameful and wrong that John Arthur's death certificate may have to be revised to list him as single and erase his husband's name as his surviving spouse. 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. 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."

National Center for Lesbian Rights:

Said [NCLR attorney Abby] Rubenfeld: "Today's decision by the Sixth Circuit is deeply disappointing, inconsistent with dozens of other marriage equality decisions since Windsor, and unfair to the hundreds of LGBT Tennesseans who are already married to same-sex partners whom they love. We are hopeful that soon, the U.S. Supreme Court will rule that equal protection requires Tennessee, and every state, to treat same-sex couples and their children with the same respect as other families. "

Added NCLR Legal Director Shannon Minter: "Today's ruling is out of step with the numerous federal courts, including four federal courts of appeals, that have ruled over the past year that same-sex couples and their children are entitled to the same dignity and legal protection as other families. The freedom to marry is one of the most basic rights protected by our Constitution, and one that belongs to every American, regardless of their gender or sexual orientation."

SCOTUSblog's Lyle Denniston, who calls the circuit split "a stark one," weighs in on what's likely to come next:

The challengers in the cases in the four states of the Sixth Circuit now have two legal options:

First, they can ask the full Sixth Circuit bench (the en banc court) to reconsider their cases, and if the court does that, then the panel decision released Thursday would be wiped out and the en banc court would start fresh. The loser at that level could then seek Supreme Court review.

Second, the challengers can now move directly to the Supreme Court; they do not have any legal obligation to seek further review in the Sixth Circuit Court. If they take that path, it would be up to the Justices to decide for or against review, and it would take the votes of only four of the nine Justices to agree to hear the case.

One argument for going directly to the Supreme Court has already been made, by advocacy groups and lawyers on both sides of this constitutional controversy: that is, that the time is now to get the constitutional issue resolved, once and for all.

If the challengers wait until the Sixth Circuit Court went through en banc review (assuming that were granted), the issue almost certainly would not reach the Supreme Court for consideration in the current Term. Other courts of appeals are considering the issue, but they are not likely to decide their cases in the current calendar year.

If a case is filed with the Justices soon, by contrast, it could be heard and decided before the Justices complete this Term early next summer. Any case that the Justices accept for review by mid-January would be decided in the current Term.

Of course, the challengers in the four states in the Sixth Circuit have the option of each filing their own separate appeal to the Supreme Court, and that might be the more likely tactic, since each case has different facts even though the basic constitutional issue is nearly identical among them.

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