Sixth Circuit Upholds Marriage Bans

Two judges of three on a panel of the Sixth Circuit Federal Court of Appeals in Cincinnati yesterday agreed to uphold marriage bans in the four states comprising their circuit: Michigan, Ohio, Kentucky, and Tennessee. Judge Jeffrey S. Sutton wrote the opinion, which says in part:

What remains is a debate about whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples. Process and structure matter greatly in American government. Indeed, they may be the most reliable, liberty-assuring guarantees of our system of government, requiring us to take seriously the route the United States Constitution contemplates for making such a fundamental change to such a fundamental social institution.

Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us—just two of us in truth—to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee. What we have authority to decide instead is a legal question: Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?

Judge Martha Craig Daughtrey dissented strongly, saying:

These plaintiffs are not political zealots trying to push reform on their fellow citizens; they are committed same-sex couples, many of them heading up de facto families, who want to achieve equal status -- de jure status, if you will -- with their married neighbors, friends, and coworkers, to be accepted as contributing members of their social and religious communities, and to be welcomed as fully legitimate parents at their children's schools. They seek to do this by virtue of exercising a civil right that most of us take for granted - the right to marry.

For although my colleagues in the majority pay lip service to marriage as an institution conceived for the purpose of providing a stable family unit "within which children may flourish," they ignore the destabilizing effect of its absence in the homes of tens of thousands of same-sex parents throughout the four states of the Sixth Circuit.

Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court.

Full text of the ruling and dissent here. The ACLU has already announced that they will immediately appeal to the Supreme Court, which you may recall declined to make any ruling last month because at that time all the federal appeals courts had upheld same-sex marriage as a fundamental civil right; now the Supremes will have to deal with the question directly, it seems to me.

Freedom to Marry reports:

The decision flies in the face of a nearly unanimous string of 49 rulings issued since June 2013 in favor of the freedom to marry for same-sex couples. Just three lower court rulings in the past year and a half have upheld marriage discrimination.

Click here to see pics and read the stories of several of the plaintiff couples affected by the Sixth Circuit's decision.

Wikipedia makes this observation:

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.