2014-APR: In "Henry v. Wymyslo," judge issues
recognition of out-of-state SSMs.
U.S. 6th Court of Appeals hears cases from four
& issues a surprise ruling upholding ban.
On this web site: "SSM" refers to same-sex marriage."LGBT" refers to
the Lesbian, Gay, Bisexual, Transgender and Transsexual community.
2014-APR-14: Ohio District Court Judge Timothy Black issues his ruling:
His ruling said, in part:
"The record before the Court, which includes the judicially-noticed record in Obergefell, is staggeringly devoid of any legitimate justification for the State‚s ongoing arbitrary discrimination on the basis of sexual orientation, and, therefore, Ohio‚s marriage recognition bans are facially unconstitutional and unenforceable under any circumstances."
Judge Black only ordered the state to immediately recognize the out-of-state marriages of the plaintiffs. He did not carry his ruling to its logical conclusion and require Ohio to recognize the out-of-state marriages of other same-sex couples, or allow same-sex couples to marry within its borders. He will hold a stay pending briefing during the week of APR-13 to decide whether to issue a stay on his ruling. He is inclined to require the state to recognize the plaintiffs' marriages, but not marriages by other members of the LGBT community in Ohio. He wrote:
"The Court is inclined to stay its finding of facial unconstitutionality but not to stay the Orders as to the as-applied claims of the four couples who are Plaintiffs because they have demonstrated that a stay will harm them individually due to the imminent births of their children and other time-sensitive concerns. The Court inclines toward a finding that the issuance of correct birth certificates for Plaintiffs‚ children, due in June or earlier, should not be stayed. The Court is further inclined to conclude that the Defendants will not be harmed by compliance with the requirements of the United States Constitution. ..." 1
2014-AUG-06: "One Court, Three Judges, ... Four States" 2 and Four Lawsuits: Hearing held for SSM cases in Ohio & 3 other states.
A few words about the federal court system.
It is built like a pyramid:
At the top of the structure is the U.S. Supreme Court. It can grant certiorari -- accept an appeal -- from any one of the 11 U.S. Circuit Courts of Appeal, or from a state supreme court. It also has the authority to reject or delay such appeals. It can issue rulings that affect as few as one state or as many as all 50 states and the District of Columbia. They schedule their work on a yearly cycle, granting certiorari in December of each year, hearing the cases the next spring, and issuing their rulings in June. It is composed of nine Justices, of whom four are considered liberal and five conservatives. However, one of the conservative members, Justice Kennedy, tends to be liberal on social matters, particularly those related to sexual orientation and gender identity.
The next level down are the U.S. Circuit Courts of Appeal. There are 12 of these courts. One handles cases from the federal government and the District of Columbia. The remaining 11 courts handle cases appealed to it from as many as 9 states and two territories and as few as three states. An appeal to one of these courts is typically first considered by a randomly selected panel of three judges. Their decision may be later appealed to the full Court of Appeal or to the U.S. Supreme Court.
At the bottom level are the federal District Courts. There are typically two or more of these in each state. This is where many dozens of marriage equality lawsuits have been filed since the Supreme Courts' ruling in Windsor v. United States during 2013-JUN. That ruling declared a major section of the federal Defense of Marriage Act (DOMA) unconstitutional. It opened the floodgates to additional lawsuits relating to marriage equality.
The U.S. Sixth Circuit Court of Appeals handles cases from four states: Ohio, along with Kentucky, Michigan, and Tennessee. 3 On AUG-06, a three-judge panel of this Court of Appeals held a marathon session in which same-sex marriage cases from all four states were heard, back-to-back, with at least one case from each of the four states. In two of the states, a pair of cases were combined. Of the three judges who were randomly selected from the 15 judges on the court, two were nominated by President George W. Bush and one by President Bill Clinton.
The various lawsuits involved some of four separate problems faced by same-sex couples:
Whether they should be able to marry in their state.
Whether their marriages, when solemnized out-of-state, must be recognized in their state.
Whether they should be able to adopt children.
Whether their names should be placed on partners' death certificates.
District Courts in Kentucky and Michigan had declared same-sex marriage bans in their state to be unconstitutional on the basis that the bans violated the Due Process and/or the Equal Protection clauses in the 14th Amendment to the U.S. Constitution. These states have asked the 6th Circuit Court of Appeals to reverse the District Court rulings and restore the ban on marriage by same-sex couples.
District Courts in Ohio and Tennessee had declared that the states must recognize legal marriages solemnized in other states by same-sex couples. These states have also asked that those rulings be reversed.
From the questions asked by the judges, many commentators are expecting a 2 to 1 vote by the three judge panel. It appears that:
Judge Martha Craig Daughtrey, the Clinton appointee, strongly favors marriage equality.
Judge Deborah L. Cook, a Bush appointee, appears to strongly favor the right of state legislatures and voters to ban same-sex marriage.
Judge Jeffrey S. Sutton, the other Bush appointee is expected to be the swing vote. He repeatedly asked why those promoting marriage equality were using the court system rather than simply waiting until the majority of voters in each state supports same-sex marriage and then initiating a movement to appeal existing state constitutional amendments and state statutes that ban same-sex marriage. 7
The main response to his suggestion by supporters of marriage equality would probably be based on speed: By pursuing the matter through federal courts, there is the possibility that the U.S. Supreme Court could follow its own lead in the 1967 case Loving v. Virginia which legalized interracial marriage across the U.S. The high court could issue a similar ruling for same-sex marriages in mid-2015 or more likely in mid-2016. To wait until the majority of voters in Southern states supported marriage equality, and thus be willing to repeal their state's constitutional bans on same-sex marriage, could take a decade or two. Meanwhile, hundreds of thousands of same-sex couples who are unable to marry are experiencing difficulties each day because of the bans.
Surprisingly, the decision of the 6th Circuit Court may or may not play a major role in the eventual outcome:
If they overturn the rulings of the District Courts then the U.S. Supreme Court would face disagreements from among multiple Courts of Appeal. Two such courts have already ruled in favor of marriage equality. This would encourage the Supreme Court to more readily accept one or more appeals concerning marriage equality in order to harmonize the matter across the U.S.
Ian James, executive director of FreedomOhio -- a pro-equality group -- said:
"I think that having a decision that‚s contrary to the other decisions propels the whole case of marriage equality to the Supreme Court, which will ultimately make a decision. ... We‚re also cognizant that the Supreme Court doesn‚t always rule the way everyone would like." 4
However, if the Circuit Court upholds the rulings of the District Courts, then this will add to the momentum towards marriage equality and make it more likely for the Supreme Court to eventually agree with the lower courts.
Marc Spindelman, a law professor at Ohio State University, commented on the unbroken string of over 30 decisions by state and federal district courts -- including four during the previous four weeks in Florida. All have been in favor of marriage equality. He said:
"Those decisions are not binding on the 6th Circuit. But the consensus among judges that Windsor not only states that DOMA is unconstitutional, but also stands for broader equality is a principle that one can expect would impress itself on these judges." 4
On 2014-NOV-06, the 6th U.S. Circuit Court of Appeals found same-sex marriage bans in 4 contiguous states to be constitutional! This came as a surprise to some observers because dozens of federal courts had ruled the state bans to be unconstitutional since the high court's ruling in Windsor v. United States during mid-2013.
Wilson was the case that declared Section 3 of the federal Defense of Marriage Act (DOMA) to be unconstitutional. That decision gave same-sex married couples access to 1,138 federal programs, protections, and benefits on a par with opposite-sex married couples. The majority opinion in Windsor gave subsequent state and federal judges some excellent arguments in favor of marriage equality.
U.S. District courts had previously declared SSM bans in Kentucky, Michigan, Ohio, and Tennessee to be unconstitutional because they were determined to violate the due process and/or equal protection clauses of the 14th Amendment to the U.S. Constitution. All four cases were appealed together before a three-judge panel of the 6th U.S. Circuit Court of Appeals who declared the bans constitutional by a 2:1 vote.
The Circuit Court concluded that it is:
"Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike ... resolve a new social issue in a fair-minded way."
There are some problems with this approach:
Gays and lesbians form a very small minority -- about 5% of the U.S. population and therefore have little influence on the results of referendums.
The majority of the population in the U.S. identify as Christians. At least in the past, the vast majority of Christian denominations taught that persons with a homosexual or bisexual orientation are incapable of entering into a loving, committed relationship, are unworthy to be ordained or to be married and that same-gender sexual behavior is intrinsically immoral.
The result of this process is often called the "tyranny of the majority" where the majority of voters almost always reject equal rights for minorities when it is voted upon. Preventing this was a major concern of the founders of the U.S.
The first meaningful studies of minority sexual orientations were performed by Evelyn Hooker in the 1950's. Her studies, and subsequent ones, showed that a homosexual orientation is not a mental illness, but is a normal, natural, unchosen, and fixed sexual orientation for a minority of adults. Although the vast majority of psychiatrists, psychologists, social workers, and other therapists agree with this, there are many faith groups and a sizeable minority of adults who disagree with these conclusions. The result is that in conservative states, a referendum on marriage equality is almost certainly to be defeated if held anytime over the next decade or two.
This ruling is expected to be resolved in the future by an "en banc" appeal the full 6th Circuit Court of Appeals or directly to the U.S. Supreme Court. Although the high court had refused to hear appeals from the 4th, 7th and 10th U.S. Circuit Court of Appeals one month previously, they are much more likely to accept an appeal from this Circuit Court. That is because the U.S. Supreme Court is now faced with a conflict: three Circuit Courts have ruled in favor of marriage equality and one has ruled against it. As long as there is agreement among the lower courts, the high court is often reluctant to interfere. But if there is a conflict, many Justices of the high court feel that they have an obligation to intervene to resolve the conflict. 5