ACLU To Appeal Sixth Circuit Decision Straight to the U.S. Supreme Court

Jim Burroway

November 6th, 2014

Chase Strangio, staff attorney for the ACLU Lesbian Gay Bisexual and Transgender Project, has announced that they will bypass an en banc review and appeal today’s Sixth Circuit decision directly to the U.S. Supreme Court:

“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.”

Meanwhile, this dissent of today’s decision, written by Sixth Circuit Judge Martha Daughtrey, caught my eye. She denounced the majority’s opinion which refused to recognize the judiciary’s responsibility for guaranteeing the rights of all Americans (PDF: 309KB/64 pages):

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.” 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

She also wonders aloud:

These four cases from our sister circuits provide a rich mine of responses to every rationale raised by the defendants in the Sixth Circuit cases as a basis for excluding same-sex couples from contracting valid marriages. Indeed, it would seem unnecessary for this court to do more than cite those cases in affirming the district courts’ decisions in the six cases now before us. 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 regarding the legality of same-sex marriage that could prompt a grant of certiorari by the Supreme Court and an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens. Perhaps that is the case, but it does not relieve the dissenting member of the panel from the obligation of a rejoinder.


November 7th, 2014

Daughtrey’s dissent is amazing — she rips Sutton’s opinion, and the majority, to shreds, right from the beginning. It starts on page 43 of the ruling, and I recommend everyone read it — it will certainly cheer you up.


November 7th, 2014

I get the feeling that the Supreme Court reeeeeeally doesn’t want to take this up. Could they possibly send it back to the Six Circuit for an en banc?


November 7th, 2014

SCOTUS certainly could send it back for en banc. I suspect that Scalia et al really would like to postpone this in hopes of getting a lock on the conservative Catholic domination of the SCOTUS.


November 7th, 2014

At the same time, one wonders if the more liberal half of the SCOTUS doubt’s Kennedy’s commitment to equality.

Mark F.

November 7th, 2014

SCOTUS cannot compel an Appeals Court to review a case “en banc.” That action has to be requested by the losing party in the case, and it appears that is not happening. So Scotus has to decide either to deny cert, leaving a circuit split in place, or to take the case. If they accept the case, we might have a decision in June.

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