A panel of the Sixth Circuit Court of Appeals today in a split decision decided to go against the tide of history and upheld same-sex marriage bans in four states.
Barring an en banc review reversal by the full appellate court, the U.S. Supreme Court is almost certain to have to review this ruling, and can no longer avoid having to make a final decision on whether constitutional equal protection applies to gays and lesbians. These cases also include a challenge to Section 2 of DOMA, which raises the constitutional question of the Full Faith and Credit Clause requiring states to recognize lawful same-sex marriages from other states.
Lyle Denniston at SCOTUSblog reports Sixth Circuit: The split on same-sex marriage:
Breaking ranks with a wide array of other federal courts, and coming close to setting up almost certain review by the Supreme Court, a divided federal appeals court in Cincinnati on Thursday upheld bans (.pdf) on same-sex marriage in four states. Dividing two-to-one, the U.S. Court of Appeals for the Sixth Circuit overturned lower court rulings in cases from Kentucky, Michigan, Ohio and Tennessee.
Probably the only way that this ruling would not predictably lead to Supreme Court review, it appears, is if there is a request for en banc review in the Sixth Circuit, and that request is granted.
The decision was based largely on the two-judge majority’s view that the question of whether to move the nation toward same-sex marriage in every state is for the people or the states, and not for judges applying the national Constitution.
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.”
The opinion was joined by Circuit Judge Deborah L. Cook. Senior Circuit Judge Martha Craig Daughtry dissented, calling the Sutton opinion “an introductory lecture in political philosophy,” but failing, as an appellate court decision, “to grapple with the relevant constitutional issue in this appeal.”
At this point, the decision conflicts directly with federal appeals courts in the Fourth, Seventh, Ninth and Tenth Circuits — precisely the kind of division of judgment that ordinarily will lead the Supreme Court to step in to resolve the split, especially on an issue of fundamental constitutional significance.
So far, the Court has passed up review of any of the lower court decisions striking down state bans, and it has even refused to put lower-court decisions on hold until appeals could be filed and decided by the Justices. In widely reported public comments, Justice Ruth Bader Ginsburg has indicated that the main reason the Court bypassed the cases up to that point was that there was no current split among the courts of appeals.
Now there is a split, and it is a stark one.
In one sweeping decision, the Sixth Circuit has given all of the states in its geographic region a victory for their bans on initial marriages of same-sex couples and their bans on official recognition of gay and lesbian marriages performed outside of the couples’ home states. By contrast, other federal courts have nullified identical bans in thirteen states just over the past few months.
Earlier this week, state courts in Missouri and Kansas took action on same-sex marriage cases. Lyle Denniston at SCOTUSblog reports, Missouri, Kansas: Moves on same-sex marriage:
A state judge in St. Louis has ruled unconstitutional Missouri’s ban on marriage for same-sex couples, leading state officials to rush an appeal to the state supreme court, but they did not ask that the ruling be put on hold. In neighboring Kansas, meanwhile, the state supreme court has indicated that it may stand aside and let the issue unfold in federal court.
One of the most significant facets of the ruling against the Missouri ban is that the judge discounted the significance of a 2006 ruling by the U.S. Court of Appeals for the Eighth Circuit that has been used by officials in many states to argue that there is already a split in the federal appeals courts on the issue, so the Supreme Court should step in to settle it.
In the Missouri case, Circuit Court Judge Rex M. Burlison of St. Louis on Wednesday issued a fifteen-page decision, declaring that limiting marriage to opposite-sex couples violates the federal Constitution’s guarantees of legal equality and of due process. He ordered state officials to begin issuing marriage licenses to couples who meet all other qualifications for marriage, and said that licenses cannot be denied just because a couple is of the same sex.
Missouri Attorney General Chris Koster said in a statement that the state was taking the issue on to the state supreme court, adding that that is where the constitutional challenge to “Missouri’s historically recognized right to define marriage” must be decided.
However, noting that the U.S. Supreme Court had recently refused to postpone lower-court rulings nullifying other states’ bans, Koster added: “We will not seek a stay of this court’s order when the United States Supreme Court has ruled none should be granted.”
Although the actions of the St. Louis judge and of the state attorney general seem to indicate that same-sex marriages could begin in Missouri, the issue is complicated there by the fact that a federal district court in Kansas City is also reviewing the constitutionality of the state’s ban. Today, the state attorney general’s office asked U.S. District Judge Ortrie D. Smith to hold a conference to discuss the status of the federal case “in light of ongoing state litigation.”
The federal case before Judge Smith apparently is now ready for decision on motions by both sides for a ruling without a trial, based only on the written filings.
Judge Burlison’s decision was the second by a state judge in Missouri on same-sex marriage, but the first one, by a Kansas City judge in October, ruled only that already-married same-sex couples, wed outside of Missouri, have a right to have their marriages officially recognized. The state opted not to appeal that ruling.
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One of the arguments that the state had made before Judge Burlison’s state court — an argument that the state also has made in the pending federal case — is that the Eighth Circuit has already answered the question of whether a state ban on same-sex marriage is unconstitutional. (That is the appeals court for the federal judicial region that includes Missouri.)
The Eighth Circuit ruled in the case of Citizens for Equal Protection v. Bruning in 2006. That was a case involving a ban in Nebraska — another state located in the Eighth Circuit. That case, like the spate of more recent cases in federal and state courts, involved a challenge by same-sex couples to the law prohibiting them from marrying. The Eighth Circuit rejected the challenge.
Judge Burleson drew two conclusions in rejecting the argument that the Bruning decision had settled the question within the Eighth Circuit — one conclusion of importance only within Missouri, but the other with wider significance.
First, the judge declared that rulings by federal appeals courts are not binding on state courts, so the Bruning decision did not settle the validity of Missouri’s ban. The judge cited several state court rulings for that conclusion.
Going beyond that, however, Judge Burlison said that the Bruning decision does not apply because the advocacy group which had filed that case had not claimed that same-sex couples should have the right to get married. All that the case was about, the judge said, was a request to strike down the ban on the theory that it deprived gays and lesbians of an equal opportunity to try to persuade the state legislature to give legal protection to same-sex relationships.
That ruling, the judge added, went no further than to reject the argument that “a state constitutional amendment that banned same-sex marriage was unconstitutional because it blocked gay men and lesbians from equal access to the political system.” What was at issue now, Judge Burlison commented, is “whether state laws unconstitutionally prevent same-sex couples from marrying.”
Besides, the judge said, “the overwhelming judicial consensus today runs contrary to the Eighth Circuit’s decision.”
That series of legal conclusions is significant to the larger issue of same-sex marriage now because the Eighth Circuit has not yet had an opportunity to rule on the constitutional question in the eight years since the Bruning decision, and Judge Burlison’s view could provide a way for the Eighth Circuit to now join in the string of decisions striking down same-sex marriage bans in response to direct challenges.
In same-sex marriage cases around the country, including some of those already filed at — but turned aside by — the Supreme Court, state officials had cited the Bruning decision as conflicting with more recent decisions by three other federal appeals courts in striking down state bans (the Fourth, Seventh, and Tenth Circuits).
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a federal judge in Kansas ruled on Tuesday against that state’s ban (see this post), the state promptly filed an appeal to the Tenth Circuit, asking it to take it on initially at the en banc level, instead of before a three-judge panel, to speed up the process.
But state officials also have filed a case in the Kansas Supreme Court, seeking to stop the issuance of marriage licenses to same-sex couples throughout the state. The state supreme court has issued a temporary order barring licenses from being issued while it considers the case, and it was preparing to hold a hearing on that appeal today.
However, on Wednesday, the state’s highest court cancelled that hearing, and told lawyers for both sides to file by November 14 written briefs on whether the issuance of marriage licenses should be barred in the state pending a final decision in the federal court, and whether the state supreme court should delay any further action on the state’s case while the federal case proceeds.
The state court’s order noted that there is a legal principle that courts sharing jurisdiction together should, as a matter of “deference and respect,” and to avoid conflicting rulings and unnecessary expense, give effect to a ruling by one of them. That can apply as much to federal and state courts as to parallel state courts, the order said.
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