Marriage Equality in the Sixth Circuit: Important Questions and Little Certainty

Michael Tew, Ph.D

In a packed courtroom of the U.S. Court of Appeals for the Sixth Circuit (and two overflow courtrooms with audio feed), three judges heard arguments about the rights of same sex couples in six cases from four states. August 6, 2014 was the most extensive day in the legal debate about Marriage Equality since the Supreme Court decision striking down Section 3 of DOMA in June of 2013. After a streak of 29 federal court victories for Same Sex marriage advocates, the outcome of these appeals is less clear. The court gave no indication of how it would rule or when it would rule but the decision seems to hinge on four specific questions.
Is there a fundamental right to marry for same sex couples?
Why should the court circumvent democratic process?
Is there a rational state interest in restricting marriage to opposite sex couples?
Does the court, at this level, have the ability to intervene?

Is there a fundamental right to marry for same sex couples?
This is the central question that marks these cases as 14th amendment issues. The answer depends on how one views history. Attorneys representing the States, argued that, while opposite gender (referred to a traditional marriage by each of them) has deep cultural roots, it is too soon to say the same for same sex marriage. Michigan’s Aaron Lindstrom suggested there hasn’t been time for social science to examine such relationships and families. (That is not actually correct. See this credible study http://bit.ly/1oI0nfq). Judge Jeffery Sutton seemed to favor the view that states have the right to regulate marriage as they see fit. He took issue with Senior Judge Martha Craig Daughtrey’s assertive argument that Loving (1967) established marriage as a fundamental right. Further, Daughtrey pointed out that until the SCOTUS decision in Lawrence (2003) homosexuality was criminalized making any deeply rooted tradition impossible. Further, she reinforced MI Plaintiff attorney, Carole Stanyar’s argument that these cases “do not redefine marriage – they end the exclusion of same sex couples.”
Take Away: This is a critical determination. SCOTUS avoided a ruling on marriage as a fundamental right for same sex couples when it returned the Prop 8 case back to California. Windsor was not decided on that basis. Loving established the right to marry who one chooses as a fundamental right. Two circuit courts have already concluded that same sex couples are included in this right.

Why should the court circumvent democratic process?
Central to the arguments from Michigan, Ohio, and Kentucky (and clearly important to Sutton) was the issue of democratic process, through legislation and/or referenda. Attorneys for MI, OH, and KY asked the question of who gets to decide about same sex marriage. They each claimed that using the courts violates democratic principles and processes. Michigan attorney Lindstrom specifically argued that people are rationale deciders and the decisions made in anti-LGBT state referenda should stand until the people change their minds. Judge Sutton, during each argument, repeatedly asked questions that reflect and support this reasoning. He suggested that time will resolve the controversy democratically as the trajectory of state and Supreme court decisions favors the recognition of same sex marriage. It is on this question that Daughtrey was most pointed (and humorous). She asked OH attorney, Eric Murphy if he knew how long it took for women to gain the right to vote. He did not. The answer is 78 years. After which, due to lack of success in step by step “democratic processes”, the issue was decided by an amendment to the U.S. constitution. She and plaintiff’s attorneys all asserted that this is timeline is unacceptable and harmful to the plaintiffs and their families. Moreover, attorneys for all plaintiffs reminded the court that historically, questions of civil rights should not be decided by popular vote.
Take Away: First, the courts are part of the democratic process. They exist, in part, to ensure that the rights of minorities are not trampled by intolerant, tyrannical, or even uncomfortable majorities (read http://bit.ly/1u3Tt7T). The conflation of democracy with majoritarianism was a problematic theme in this hearing.

Is there a rational state interest in restricting marriage to opposite sex couples only?
The one word basis to the States’ (all of them response to this question – procreation. Leigh Gross Latherow, arguing to preserve Kentucky’s ban, was the most specific (and colorful) on this issue. A paraphrase: Opposite sex couples can and do procreate. Kentucky wants to promote procreation. Married couples procreate. People involved in “same sex behaviors” don’t procreate. So the state wants to regulate and encourage procreation through marriage. Same sex behaviors, then, aren’t part of marriage. When pressed by Judge Daughtrey about couples who are unable or choose not to procreate, Latherow answered that at least with opposite sex couples there was the possibility of unplanned pregnancy. Read here (http://reut.rs/1oJClB0) if you need more evidence of why this line of argument is absurd. Further, Joseph Whalen of Tennessee argued that, in the interests of promoting and preserving procreation, Tennessee did not intend to exclude same sex couples, it only chose to include opposite sex couples (capable of procreation). Both Sutton and Daughtrey were skeptical that any rational basis for exclusion was actually established.
Take Away: A procreation basis for rational interest has yet to be successful in any legal proceeding on marriage equality to date. Nothing offered in this hearing appeared to change that.

Does the court, at this level, have the ability to intervene?
Judge Sutton seemed to question the latitude for the court’s decision based on an 11 word summary dismissal of a Minnesota same sex marriage case in 1972. In Baker v Nelson, the court dismissed the appeal “for want of a substantial federal question.” That meant that a lower court ruling that the Minnesota ban on same sex marriage was constitutional, would stand. The precedential nature of this ruling, cited as in all four state arguments, is subject to significant debate both in this hearing and otherwise (http://bit.ly/1AZf4At). Sutton questioned whether lower courts were bound by Baker while Daughtry, and plaintiff attorneys, argued for the application of developing doctrine and evolving legal theory and precedent.
Take Away: This was a legal/technical part of the oral arguments that was, perhaps, lost on many of the hundreds of spectators. It is important, though. The implication is that by rejecting an appeal 42 years ago, SCOTUS established a binding precedent that this Circuit Court would be the first to accept. Sutton’s commentary suggests he wants to hand this off to the Supreme Court sooner than later.

While we wait for a ruling from this hard to read panel, cases will appear before the Seventh Circuit Court on August 26th and before the 9th Circuit Court on September 8th.

About Equality Research Center

The mission of the Equality Research Center is to promote, support, and disseminate research focused on Lesbian, Gay, Bisexual, and Transgender equality and human rights. The Center is dedicated to the advancement of Equality by connecting academic, evidence based research to community action, public policy, and curricular innovation.
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