Gay marriage ruling sets stage for Supreme Court showdown

Gay marriage supporters rallied in Cincinnati on Aug. 6 as the 6th U.S. Circuit Court of Appeals there heard arguments on gay marriage fights in four states
IMAGE: AL BEHRMAN/ASSOCIATED PRESS

CINCINNATI — A federal appeals court on Thursday upheld anti-gay marriage laws in four states, breaking ranks with other courts that have considered the issue and setting up the prospect of Supreme Court review.

The 6th U.S. Circuit Court of Appeals panel that heard arguments on gay marriage bans or restrictions in Ohio, Michigan, Kentucky and Tennessee on Aug. 6 split 2-1, with Circuit Judge Jeffrey Sutton writing the majority opinion. The ruling creates a divide among federal appeals courts, increasing the likelihood the Supreme Court will now take up the issue.

The high court on Oct. 6 unexpectedly turned away appeals from five states seeking to prohibit gay and lesbian unions. The court's order effectively made gay marriage legal in 30 states. The San Francisco-based 9th Circuit Court of Appeals the next day overturned same-sex marriage bans in Idaho and Nevada, the fourth federal appeals court to rule against state bans.

But now that a different federal appeals court has upheld gay marriage bans, the disagreement at the appellate level may finally force the Supreme Court to step in and actually hear a case. The nation's highest court would have to decide whether states can ban gay marriage or whether gay and lesbian couples have a fundamental right to marry under the U.S. Constitution. Thirty-two states recently asked the Supreme Court to settle the issue once and for all.

Justice Ruth Bader Ginsburg recently told a Minnesota audience that the 6th Circuit's then-pending ruling would likely influence the high court's timing, adding "some urgency" if it allowed same-sex marriage bans to stand.

The 6th Circuit's ruling on Thursday concluded that states have the right to set rules for marriage.

It followed more than 20 court victories for supporters of same-sex marriage since the U.S. Supreme Court struck down part of the federal Defense of Marriage Act last year.

During the Aug. 6 arguments, it was apparent that Sutton would be the deciding vote, with the two other judges clearly on opposite sides of the debate.

Sutton vigorously questioned each side's attorneys, though he repeatedly expressed deep skepticism that the courts were the best place to legalize gay marriage, saying that the way to win Americans' hearts and minds is to wait until they're ready to vote for it.

"I would have thought the best way to get respect and dignity is through the democratic process," Sutton, a George W. Bush nominee, said at the time. "Nothing happens as quickly as we'd like it."

Michigan's and Kentucky's cases stem from rulings striking down each state's gay marriage bans. Ohio's two cases deal only with the state's recognition of out-of-state gay marriages, while Tennessee's is narrowly focused on the rights of three same-sex couples.

Plaintiffs include a Cincinnati man who wants his late husband listed as married on his death certificate so they can be buried next to each other in a family-only plot and a Tennessee couple who both want to be listed on their newborn daughter's birth certificate.

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WASHINGTON -- A federal appeals court judge on Tuesday issued a scathing dissent to an opinion supported by two of her colleagues who upheld bans on same-sex marriage in Michigan, Ohio, Tennessee and Kentucky.

In a 2-1 decision, the Sixth Circuit Court of Appeals overturned the rulings of lower federal courts that found same-sex marriage bans unconstitutional.

But in a blistering dissent, Martha Craig Daughtrey wrote that while her colleagues' opinion would make "an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy," it "wholly fails" to address the issue of whether a state constitution's ban on same-sex marriage violates the equal protection clause of the 14th Amendment. The majority opinion "treats both the issues and the litigants here as mere abstractions," Daughtrey wrote.

"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," she wrote.

"But these plaintiffs are not political zealots trying to push reform on their fellow citizens; they are committed same-sex couples, many of them heading up de facto families, who want to achieve equal status ... with their married neighbors, friends, and coworkers, to be accepted as contributing members of their social and religious communities, and to be welcomed as fully legitimate parents at their children’s schools," she continued. "They seek to do this by virtue of exercising a civil right that most of us take for granted -- the right to marry."

Citing the Supreme Court ruling that struck down key provisions of the Defense of Marriage Act in 2013, Daughtrey said that the majority of the federal appeals court ignored the damage to the children of same-sex couples whose unions were not recognized.

People familiar with the Supreme Court ruling in the Windsor case, Daughtrey wrote, "must have said to themselves at various points in the majority opinion, 'But what about the children?' I did, and I could not find the answer in the opinion."

She added that it was "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."

In concluding her dissent, Daughtrey cited the oath of office she took more than 20 years ago when she was sworn into office. She said her 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." She wrote that the judiciary existed to "ensure that rights, liberties, and duties need not be held hostage by popular whims."

"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," she wrote.

CORRECTION: An earlier version of this story said the court ruled 3-2. In fact, the ruling was 2-1.

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