Same-sex marriage (SSM) in Kentucky, Michigan, Ohio & Tennessee
Part 1: The U.S. Sixth Circuit Court of Appeals
rules in favor of marriage INequality, in cases
involving Kentucky, Michigan, Ohio & Tennessee.
Reactions to the ruling.
This topic is continued from a previous essay dealing
with SSM in Kentucky, Michigan, Ohio, or Tennessee.
2004 to 2014-NOV: Brief review of the path towards marriage equality in the U.S.:
- On 2004-MAY-17, as a result of a Massachusetts lawsuit "Goodridge v. Dept. of Public Health," the first same-sex couples in the U.S. were able to legally marry. Gradually, a few additional states across the country also attained marriage equality, by rulings of state or federal courts, or by state legislative actions, or by voters during citizen initiatives.
- On 2013-JUN-26, the U.S. Supreme Court issued its decision in the case Windsor v. United States. They found Section 3 of the federal Defense of Marriage Act (DOMA) -- to be unconstitutional. As a result, legally married same-sex couples, and their children, were able to tap into the 1,138 federal marriage plans, benefits, and protections just as opposite-sex married couples can. As a result of this decision:
- The list of benefits received by married same-sex couples were increased considerably. Previous to Windsor, they would typically receive only a few hundred state benefits plus the intangible benefit of having their relationship recognized as a marriage by their state.
- The justices had found that the due process and equal protection clauses of the 14th Amendment of the U.S. Constitution supported marriage equality. Those clauses require federal, state, and local governments to treat people equally; by extension, they must also treat couples equally. The result was that over the next year an a half, dozens of judges in state and federal courts used the high Court's reasoning. They ruled in favor of same-sex marriage and overturned same-sex marriage bans. This list included federal District Courts in Kentucky, Michigan, Ohio and Tennessee.
- By 2014-NOV-05, about sixteen months after the Windsor decision, more than 50 state courts, U.S. District courts and U.S. Circuit Courts of Appeal had issued rulings about SSM bans in various states. Only two found the bans to be constitutional. 1 The rest found them unconstitutional and void because they violate the due process and/or the equal protection clause of the 14th Amendment to the U.S. Constitution.
Ruling by the 6th Circuit Court on same-sex marriage:
On 2014-NOV-06, The 6th Circuit Court issued its ruling in the case DeBoer v. Snyder. It is a combination of six cases from federal courts in Kentucky, Michigan, Ohio and Tennessee. Some plaintiffs are single and want to marry in their state. Others have been legally married out-of-state and want their own state to recognize their marriages.
The vote by the three-judge panel was by the narrowest of possible margins: 2:1. The two judges who were nominated by Republican presidents voted to uphold the ban. The one judge who was nominated by Democratic president voted against the ban and in favor of marriage equality.
The court overturned each of the District Court rulings. It was the fifth circuit court to rule on same-sex marriage, and the first to uphold marriage bans against same-sex engaged couples. Judge Jeffrey Sutton wrote the ruling, which was based on the following beliefs:
- When the Fourteenth Amendment was written, its authors did not anticipate that it would be used in their future to argue in favor of marriage equality.
- A rational basis exists for states to deny marriage to same-sex couples.
- The laws banning same-sex marriages are not based on animus -- intense dislike, hatred, and animosity -- towards non-heterosexuals.
- There is no fundamental right for one person to marry another of the same gender.
- Judicial heightened scrutiny does not apply to same-sex marriage bans, as it does -- for example -- in laws discriminating on the basis of race.
Judge Sutton, writing against marriage equality, said that the question is not so much whether marriage equality will become universal, but when. He wrote:
"When the courts do not let 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."
Dissenting Judge, Martha Craig Daughtrey, wrote:
"The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment. Instead, the majority sets up a false premise – that the question before is who should decide – and leads us through a largely irrelevant discourse on democracy and federalism."
Webmaster's comment: (bias alert):
IMHO, the basic question is whether fundamental human rights -- like the right to marry -- should be universal, or should they only be given to groups that are approved of by the majority of voters. If the latter, than all disfavored groups can expect to be be denied human rights. That effect is commonly referred to as the "Tyranny of the Majority." Preventing it was a major concern of the founders of the United States. My personal view is that such human rights should be taken out of the hands of the public and recognized as being guaranteed by the state and federal Constitutions.
By 2014-NOV-06, same-sex couples could marry in the District of Columbia and in any one of 33 states. This grew to 34 states on NOV-13 with the addition of Kansas. But there are still 16 states that have not yet attained marriage equality. This situation is untenable. Marriage is generally considered to be a human right, guaranteed by the U.S. Constitution, and yet one group of couples can marry in some states, but not in others.
The U.S. Supreme Court was faced with this problem in 1967 when it tackled the topic of interracial marriage. At the time, about 72% of American adults opposed
interracial marriage and 48% even felt that marrying a person of another race should
be prosecuted as a criminal act. The high court's decision in Loving v. Virginia was based on the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution. The court ruled that the federal Constitution placed marriage equality based on race out of the control of public opinion. They might decide the same for equality based on sexual orientation in the relatively near future.
Reactions to the decision by the 6th Circuit Court:
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- "Marriage litigation at the 6th Circuit," Freedom to Marry, at: http://www.freedomtomarry.org/
- "January 20, 2014: Anzalone Liszt Grove Research," Freedom to Marry, at http://www.freedomtomarry.org/
- "Growing support for marriage in every region of the Country, Freedom to Marry, at: http://www.freedomtomarry.org/
- Linda Blackford, "Majority of Kentucky voters oppose same-sex marriage, but opposition appears to be softening," Lexington Herald-Leader, 2014-FEB-07, at: http://www.kentucky.com/
- Mike Wynn, "Poll: Opposition to gay marriage waning in Ky.," USA Today, 2014-JUL-29, at: http://www.usatoday.com/
- Jonathan Oosting, "MSU survey: Majority of Michigan residents support gay marriage as judge considers ban," MLive, 2014-MAR-01, at: http://www.mlive.com/
- "Clinton leads Republicans in Michigan," Public Policy Polling, 2014-APR-09, at: http://www.publicpolicypolling.com/
- Robert P. Jones, "A Shifting Landscape," Public Religion Research Institute,
2014-FEB-26, at: http://www.publicreligion.org/
- "Results of SurveyUSA election poll #21223,"Survey USA, 2014-APR-29, at: http://www.surveyusa.com/
- "MTSU Polls Public Opinion on Guns, Gay Marriage, Medical Marijuana, Obamacare, Abortion, WIGS," TNReport, 2014-FEB-13, at:
- Dale Carpenter, "Two more same-sex marriage cases reach the Supreme Court," The Washington Post, 2014-NOV-18, at: http://www.washingtonpost.com/
- Dale Carpenter, "Inverted equal protection: same-sex marriage at the Sixth Circuit (Part I, originalism),"
The Washington Post, 2014-NOV-14, at: http://www.washingtonpost.com/
- "All Four States in Sixth Circuit Have Filed Appeals to Supreme Court," Human Rights Campaign, 2014-NOV-17, at:
Copyright © 2014 by Ontario Consultants on
Originally posted: 2014-NOV-19
Last updated 2017-JUL-31
Author: Bruce A Robinson