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.