Same-sex marriage (SSM) in Kentucky.
Part 9: 2014-AUG to NOV:
Hearing of Timothy Love, et al. v. Steve
Beshear by the 6th U.S. Circuit Court of Appeals.
The Circuit Court's surprise ruling affecting
Kentucky, as well as Michigan, Ohio & Tennessee.
2014-AUG-06: "One Court, Three Judges, ... Four States" 1 and Six Lawsuits: A marathon hearing held for SSM cases in Kentucky, etc.
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 District of Columbia and the federal government. The remaining 11 courts handle cases appealed to it from as many as 9 states and two territories and as few as three. 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.
2014-AUG-06: Hearings before the 6th Circuit Court of Appeals:
The U.S. Sixth Circuit Court of Appeals handles cases from four states: Kentucky, Michigan, Ohio, and Tennessee. 2 On AUG-06, a three-judge panel of this Court of Appeals held a marathon session in which six same-sex marriage cases were heard, back-to-back, with at least one case from each of the four states. 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.
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.
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 Court of Appeals to reverse the District Court rulings and restore the bans on same-sex marriage.
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.
The hearings (Cont'd):
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. 1 The main response 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. Such a ruling could be issued 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, tens 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:
- Four Circuit Courts have ruled in favor of marriage equality: the 4th, 7th, 9th and 10th. All have approved of same-sex marriages in states under their jurisdiction. If the 6th Circuit Court overturns the rulings of the District Courts and allows the same-sex marriage ban to continue, the U.S. Supreme Court would face disagreements from among multiple Courts of Appeal. That would be an intolerable situation, since same-sex couples could marry in some parts of the country and not in other. With a foundational matter like marriage, the country should have the same rules throughout. Either same-sex couples have a right to marry or they do not. A conflict among the Circuit Courts would encourage the Supreme Court to more readily accept one or more cases dealing with 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." 3
- 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 that the Supreme Court will simply allow the debate to continue in 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 were 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." 3
2014-NOV-06: 6th U.S. Circuit Court of Appeals' suprise ruling:
The court found same-sex marriage bans in 4 contiguous states to be constitutional! This came as a surprise to many 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.
Windsor 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 for them to use in favor of marriage equality.
U.S. District courts had previouosly declared SSM bans in Kentucky, Michigan, Ohio, and Tennessee to be unconstitutional because they were seen 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 6th 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."
Civil libertarians, gay-positive support groups, and the general LGBT community generally see serious 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 from the LGBT community 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.
- 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 religiously and socially 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 to 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 during early October, 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: four 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. 4
The following information source was used to prepare and update the above essay. The hyperlink is not necessarily still active today.
- Erik Eckholm, "One Court, Three Judges and Four States With Gay Marriage Cases." The New York Times, 2014-AUG-06, at: http://www.nytimes.com/
- "U.S. Court of Appeals for the Sixth Circuit," at: http://www.ca6.uscourts.gov/
- Emma Margolin, "6th Circuit hears marathon marriage equality hearing," MSNBC, 2014-AUG-06, at: http://www.msnbc.com/
- Tresa Baldas, "Appeals court upholds Michigan's gay marriage ban," Detroit Free Press, 2014-NOV-06 at: http://www.freep.com/
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Copyright © 2014 by Ontario Consultants on Religious Tolerance.
First posted: 2014-AUG-09
Latest update: 2014-NOV-11
Author: B.A. Robinson