Same-sex marriage in Tennessee
Part 4: 2014-AUG to NOV: Hearing
cases by the 6th U.S. Circuit
of Appeals. Surprise ruling issued.
In this web site, "SSM" refers to same-sex marriage; LGBT
refers to the Lesbian, Gay, Bisexual and Transgender community.
2014-AUG-06: "One Court, Three Judges, ... Four States" 1 and six lawsuits: Marathon hearing held for SSM cases in Tennessee, & 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 their response to 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, generally granting certiorari in December of each year, hearing the cases the next spring, and issuing their rulings in June. The court is composed of nine Justices, of whom four are currently considered liberal and five conservatives. However, one of the conservative members, Justice Anthony Kennedy, tends to be liberal on some 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 few as three states and as many as none states and two territories. 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 directly to the U.S. Supreme Court.
At the bottom level are the federal District Courts. There are typically two or three 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) to be 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: Tennessee as well as Kentucky, Michigan, and Ohio. 2 On AUG-06, a three-judge panel of this Court of Appeals held a marathon three and a half hour session in which six same-sex marriage cases were heard, back-to-back, with one or more cases from each of the four states. 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 Tennessee and Ohio had declared that the states must recognize legal marriages solemnized in other states by same-sex couples. These states have asked that those rulings be reversed.
2014-AUG-06: Expectations of the Circuit Court's ruling:
From the questions asked by the judges during the hearing, many commentators expected a 2 to 1 vote by the three judge panel to uphold the states' marriage bans.
- 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
Most civil libertarians, pro-marriage equality groups, and the general LGBT community would probably reply to Judge Sutton that speed is their main reason. 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 such a ruling in mid-2015 or more likely in mid-2016. To wait until the majority of voters in all of the 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. Four such courts had 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 resolve the conflict 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 of Appeals 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." 3
2014-NOV-06: The 6th U.S. Circuit Court of Appeals' verdict:
The court found the same-sex marriage bans in all four 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 and gave same-sex married couples access to 1,138 federal programs, protections, and benefits on a par with opposite-sex married couples.
U.S. District courts had previously declared SSM bans in Kentucky, Michigan, Ohio, and Tennessee to be unconstitutional because they violate the due process and/or equal protection clauses of the 14th Amendment to the U.S. Constitution. All six cases from the four states were appealed together to 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 of the 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 have taught that persons with a homosexual or bisexual orientation are incapable of entering into a loving, committed relationship, are immoral, and unworthy to be ordained or to be married.
- Allowing the public to vote on whether a minority receives equal rights to the majority is often called the "tyranny of the majority." Generally, voters reject equal rights for minorities. Preventing this from happening was a major concern for the founders of America.
- 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 for 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 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 among the Circuit Courts: four have ruled in favor of marriage equality. These were the 4th, 7th, 9th and 10th Circuit Courts of Appeal. Now, the 6th Circuit 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.
The following information sources were used to prepare and update the above
essay. The hyperlinks are 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/
Copyright ¬© 2014 by Ontario Consultants on Religious
Originally written: 2014-AUG-09
Latest update: 2014-AUG-09
Author: B.A. Robinson