Appeals Court Reinstates Same-Sex Marriage Bans

Yesterday a federal appeals court in Cincinnati reversed lower-court decisions that voided same-sex marriage bans in Kentucky, Michigan, Ohio, and Tennessee.

I believe this is the first genuine break in the streak of court decisions that have struck down same-sex marriage bans. Just yesterday I ran into a list of 22 states in which either federal courts or state supreme courts had voided such bans. The site Freedom to Marry keeps an updated account of where marriage equality stands in the states. Same-sex marriage currently is legal in 32 states, and courts had cleared the way for marriage equality in several other states.

Lyle Denniston at SCOTUSblog has the most detailed account of yesterday’s decision, by the Sixth Circuit Court of Appeals, I’ve seen so far. The primary difference between yesterday’s decisions and the previous ones is that the Sixth Circuit upheld the states’ sovereignty on matters of marriage, and said federal courts had no bearing to countermand a state decision on marriage. The Sixth also said there is no right to marry. And this sets up an interesting contrast in legal thought.

As I understand it, some of the judges who have struck down the bans view marriage as a right of U.S. citizens that states cannot infringe. Others (see especially Judge Richard Poster’s very readable argument) basically say that the states’ reasons for banning same-sex marriage are irrational and blatantly discriminatory. Judge Posner wrote,

To return to where we started in this opinion, more than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimination on the basis of sexual orientation.

As we have been at pains to explain, the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.

The Sixth Circuit decision directly disagrees with Posner on some points. Posner said that “tradition” per se carries no weight, that delaying to change laws because there may be some unforeseen bad consequence to the law is not a valid excuse, and that there is no evidence children are harmed by being raised by same-sex parents. The Sixth apparently disagrees with all of those points, saying the states have a legitimate role in protecting children and that states have a right to “wait and see’ what happens elsewhere before enacting a change themselves. Also unlike Posner, the Sixth denied there was any evidence the law was based on animus to homosexuals.

Of course not. And jokes involving the President and watermelons are not racist. Sure.

Lyle Denniston writes that the Sixth also denies that homosexuals are a “discrete class deserving of special constitutional protection as historic targets of discrimination.”

The most obviously flimsy part of this decision is that it also denies that states have any obligation to recognize same-sex marriages of other states, which seems to me to fly right in the face of the Full Faith and Credit clause of Article IV Section 1.

Several articles today say that this decision almost certainly sets up a Supreme Court test. Justice Ruth Bader Ginsburg had already said awhile back that if the Sixth upheld the bans, bring it on, dudes. Well, not those exact words. How the Court might decide is uncertain, especially after the U.S. v. Windsor decision that struck down the Defense of Marriage Act (5-4, Usual Suspects with Kennedy swinging toward the liberals). I can see Justice Roberts having to decide which outcome would stir up the bigger hornets’ nest.

Update: Kenneth Jost, an adjunct professor of law at Georgetwon, rips the Sixth Circuit Court’s decision apart, and says the badly argued decision may prove to be a “blessing in disguise” for advocates of marriage equality.

11 thoughts on “Appeals Court Reinstates Same-Sex Marriage Bans

  1. OY!

    I can see “The Fascist Five,” after Tuesday’s election results, feeling even bolder and more Fascistic.
    Roberts is sharpening his shiv, to stick in the liberals backs – particularly, Obama’s.
    Scalia’s, is always razor sharp – as are Alito’s and Thomas’s.
    Kennedy is the only hope.


  2. From the Wikiepedia article on the 6th Circuit:

    Decisions issued by the Sixth Circuit were reversed by the United States Supreme Court 24 out of the 25 times they were reviewed in the five annual terms starting in October 2008 and ending in June 2013 — a higher frequency than any other federal appellate court during that time period.

    Worth noting that 10 of the 15 judges were appointed by Republican Presidents, with 8 being nominated by G.W. Bush.

    Elena Kagan is the circuit Justice for the court. Is it possible for her to issue a stay until the disparity between the circuits is resolved in SCOTUS?

  3. Circuit Judge Jeffrey S. Sutton, the author of the main opinion, 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.”

    What fucking planet is this guy from? The concept of fair mindedness doesn’t exist within revealed religion or a grossly distorted political system. It’s not a case of establishing heroes, it’s a case of establishing equality in a system that is built on a foundation of inequality.

  4. Ditto, Swami.

    Loving v Virginia is the classic example of how “fair minded” fellow citizens can maintain oppressive and unfair laws. I seem to recall that about 70% of freedom loving Americans thought that miscegenation should be illegal. That’s why adversaries occasionally have to meet in court.

    On the bright side, younger people appear to be very liberal on social issues.

  5. A minority with a long history as the victims of discrimination can’t appeal to the courts for justice? They have to persuade 51% of the electorate to persuade (or elect) a majority of state legislators who will pass marginal legislation which exempts harassment or discrimination if it’s based on religious beliefs. And I emphasize state legislators, because the 6th Circus Court has decided it’s a states rights issue where the federal government has no jurisdiction. How will the USSC decide?

    Let’s look at the decision to strike down DOMA for a clue. Writing for the majority, Justice Kennedy said about DOMA – “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal…”

    There’s no guarantee that there isn’t some difference in reasoning which will cause Kennedy to uphold states rights in defining marriage. (I think we know where everyone else on the USSC stands.) I doubt Kennedy will make discrimination a states right, based on his recent reasoning on DOMA. If that’s true, then the USSC will put the issue to rest, possibly for all time.

  6. I’m willing to be fair minded about Judge Sutton’s appeal to fair mindedness. If we are to look at this new social issue in a fair minded way, what do we have?

    On one side we have a certain number of people who want to marry other persons of the same sex. They are asserting the right to spend their lives with whom they choose.

    On the other side we have a certain number of other people who don’t think people of the same sex should be allowed to marry. They are asserting the right to intervene in the life decisions of total strangers.

    Oh, wait, that isn’t fair minded is it? They are asserting the right to practice their religion without interference. And of course their religion imposes on them a religious duty to interfere in the lives of total strangers.

    Oh screw it, I can’t be fair to these people.

  7. Swami – I think this pope is going to be a pivotal political figure by being non-political – by demanding that the Church honor the instructions of Christ .. Mark 12:17

    And Jesus said to them, “Render to Caesar the things that are Caesar’s, and to God the things that are God’s.” And they were amazed at Him.

    I understand the big guy is planning to visit the US next year. I hope he visits Ft. Lauderdale to feed the homeless – where it’s been made illegal. They arrested several clergy for defying the law. I’d love to see them try to arrest the Pope – but one shouldn’t trifle with Gods work in a state where lightning is so common. 🙂

  8. Doug…I hear that he recently shut down an annulments for cash operation that one of his Cardinals was running. As Popes go, he seems to be a pretty decent pope.

  9. As far as the 6th Circuit’s holding that there is no right to marry, they are flat out wrong — the Supreme Court has found that there is a fundamental right to marry in, I believe, 14 decisions going back to 1888. That includes the right to marry the person of one’s choice, as confirmed in Loving.

    Judge Daughtrey’s dissent is scathing and well worth reading.

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