Box Turtle Bulletin
News and commentary about the anti-gay lobby“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
News and commentary about the anti-gay lobbyNovember 6th, 2014
In a 2-1 decision, the Sixth Circuit Court of Appeals has upheld the state constitutional bans on marriage of the states of Kentucky, Michigan, Ohio, and Tennessee. Writing for the majority, Judge Jeffrey Sutton said:
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.
This determination ignores the fact that when animus in present, a minority cannot become the “hero of it’s own stories” as they lack the ability to win in the “customary political processes”. When confronting Goliath on the field of political battle, the only stone in David’s sling is that of judicial protection. Judge Sutton would have David face the giant with no stones at all.
This is, of course, not the end of the story.
It is likely that the plaintiffs will ask for an en banc review and, if they do not prevail in that venue, will appeal to the Supreme Court.
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Mark F.
November 6th, 2014
I wonder about the chances for an en banc review. Perhaps very good. In any case, a circuit split might make it more likely SCOTUS will take up the issue sooner rather than later.
I commend Judge Sutton for not making the opinion sound like he’s a raving homophobic lunatic, although from a brief skim of the decision, he misses and evades many points.
Jack
November 6th, 2014
Almost all of the judges on this circuit are Republican-appointed, so en banc review is a real crapshoot.
http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Sixth_Circuit
Mark F.
November 6th, 2014
I don’t know, we have had good luck with many Republican appointees.
Andrea
November 6th, 2014
Good news from the Circuit where the majority of its opinions are reversed by SCOTUS.
Andrea
November 6th, 2014
Please read judge Daughtrey’s dissent. It’s worth it.
tristram
November 6th, 2014
So, scarily, it’s all going to come down to Anthony Kennedy and whether, in the wake of massive conservative electoral gains at the federal, state and local levels, he is ready to jettison his career-long devotion to federalism and states rights in favor of a Constitutional equal protection argument.
Spunky
November 6th, 2014
The really frustrating thing this is the impossibly low standard the judges have for rational basis.
The judges seem to think that *any* law with a benefit to some people (i.e., straight people) survives rational basis. In this case, “the government has clear incentive to allow men and women to marry each other so that they may procreate responsibly.” However, they fail to explain how prohibiting same-sex marriage in any way serves a government interest.
This is garbage. If this is the rational basis standard for a law, then every discriminatory law will survive. Laws that treat one group better than another necessarily serve a government purpose for the people who benefit, but the minority gets screwed. That’s why you need to show not just the benefit of the law for the majority, but why excluding the minority is even possibly acceptable.
In this case, it doesn’t matter that gay couples can’t procreate. It does matter if letting them marry would cause harm to children/marriage/America. Nowhere in Part C do the judges appear to suggest anything problematic with gay marriage, resorting to the “indefinitely wait and see” argument.
Jack
November 6th, 2014
If SCOTUS sustains this ruling, ALL of the state bans struck down by federal courts go back into effect.
Mark F.
November 6th, 2014
Interestingly, SCOTUS has refused to stay any of the lower court rulings in favor of SSM.
Actually , Kennedy can go with a straight sex discrimination argument. He really doesn’t even need to get into sexual orientation. And it would really not be jettisoning his general devotion to Federalism.
CPT_Doom
November 6th, 2014
@tristam – I highly doubt Kennedy, who has crafted a judicial legacy on his pro-equality rulings, is going to be swayed by a mid-term election. The Court already gave its hand away when it denied cert for the pro-marriage rulings earlier this year. We only have to hope that Ginsburg stays alive to make this ruling a 5-4 (or Scalia has the inevitable stroke prior to the case being heard) to maintain the current court balance.
Timothy Kincaid
November 6th, 2014
Jack,
You are mistaken. Those in the three Fourth, Seventh, and Tenth have already been struck down. They can’t be un-struck.
Timothy Kincaid
November 6th, 2014
CPT-Doom… I may be a wild optimist, but I think it’s really 6-3.
It only takes 4 votes to grant cert.
Jack
November 6th, 2014
Tim –
The Supreme Court is the final arbiter on the US Constitution, It has not ruled on the constitutionality of SSM bans at the state level. SSM is occurring in some circuits right now because no stay has been imposed or a stay has been lifted, not because the Supreme Court has said the rulings in those circuits are valid.
If the court rules that a ban on SSM is constitutional in Michigan then it is constitutional in California too. That’s the whole point of the problem with a “circuit split”. If the Sixth Circuit is sustained on this question, then the Ninth Circuit et al are necessarily overruled. That’s how the system works.
Jack
November 6th, 2014
http://www.scotusblog.com/2014/10/symposium-no-going-back-for-this-bickelian-court/
Money quote: “And the Court would have a lot of explaining to do if it subsequently were to uphold a state ban, thereby throwing into doubt the legal status of same-sex couples who will now marry in the wake of today’s action by the Court.”
Jack
November 6th, 2014
http://www.religionnews.com/2014/10/07/whats-happens-next-20-states-still-ban-gay-marriage/
Money quote #2: “By letting gay and lesbian marriages go forward in 11 other states, the justices almost certainly made it harder to reverse course in the future, Yale law professor William Eskridge said. If they do, he said, the court would have to do more than simply prohibit some couples from marrying; it would have to invalidate marriages that have already taken place. “
Lord_Byron
November 6th, 2014
The opinion was clearly written weeks ago as they say only 19 states have marriage equality. They, like the Puerto Rico judge, also use Baker v Nelson as precedent for their ruling. Their opinion sounds like it was written by the FRC and it accepts the idea that marriage is only for procreation purposes. On top of that whole pile of shit they also think it would be better to change opinions slowly instead of protecting the rights. So we should just make people like us and wait for that to happen. All the while we can be denied hospital visitations rights, insurance, and other things. What pisses me off is that they acknowledge the harm, but they brush it off as basically meaningless.
Hunter
November 7th, 2014
It really looks as though the majority was trying desperately not to decide the issues. From Daughtrey’s dissent:
“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?â€â€”and leads us through a largely irrelevant discourse on democracy and federalism.”
My one-word summary of Sutton’s opinion is “Punt!”
Nathaniel
November 7th, 2014
Timothy, who do you think will be the 6th Justice?
Jack, thanks for the links. After this week’s elections, I was beginning to loose faith in the system, and was wondering if I should plan my wedding sooner rather than later. Your links made me realize the degree of chaos that would come out of SCOTUS siding with the 6th. Let’s hope we never have to find out about your initial conjecture.
Timothy Kincaid
November 7th, 2014
Nathaniel,
I guessing Roberts as a possible sixth. It’s speculation, of course, but here’s my guess in order of likelihood of support:
Kagen
Breyer
Ginsburg
Sotomayor
Kennedy
Roberts
Alito
Thomas
Scalia
Mark F.
November 7th, 2014
I think there is a very small chance Chief Justice Roberts may want to get on board behind a pro-gay decision. We can assume Alito, Thomas and Scalia are votes against equality.
Mark F.
November 7th, 2014
Timothy:
So was Kagan lying in her confirmation hearing or did she change her mind? ;-)
Jack
November 7th, 2014
Below is a knowledgeable explanation of how sustaining the 6th Circuit would play out in the other federal courts. Essentially Tim is correct that the decisions of the other circuits wouldn’t be immediately “un-struck”. Nevertheless, as I wrote, the US Constitution would have been found not to protect a right to SSM so decisions finding a right to SSM in it could be challenged in political territory unfriendly to SSM and the decisions easily reversed:
http://igfculturewatch.com/2014/11/06/sixth-circuit/#comment-266952
Quote: “An unfavorable ruling by the Supreme Court in the 6th Circuit cases would not directly abrogate existing favorable decisions in the 4th, 7th, 9th and 10th Circuits. The Supreme Court denied cert in those cases, and a cert denial means that the decisions stand regardless of the Court’s ruling in the 6th Circuit. However, that is a distinction without a difference. An unfavorable ruling in the 6th Circuit cases would almost certainly lead to lawsuits seeking to overturn the 4th, 7th, 9th and 10th Circuit decisions to bring the law in those Circuits into conformity with the Court’s ruling in the 6th Circuit cases, and eventually (depending on the precise language of the Court’s decision in the 6th Circuit cases), the bans on marriage could/would be reinstated in many of the states covered by those decisions.”
Nathaniel
November 10th, 2014
IMO, if Roberts didn’t support the Windsor ruling, then he is less likely to support forcing marriage on the states. However, I do agree his is more likely than Alito, Thomas, or Scalia (who will take the opportunity to whine about how right he was).
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