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Marriage Equality Hangs in the Balance at the Sixth Circuit

6th circuit

BY ARI EZRA WALDMAN

Yesterday's marathon arguments before the Sixth Circuit Court of Appeals reminds us that one judge can have a lot of power. A three-judge panel consisting of one Clinton appointee and two George W. Bush appointees could be the first federal appellate court to side against marriage equality in the post-Windsor era or they could join the chorus of colleagues tossing these discriminatory bans on the ash heep of history. Based solely on the questioning from oral argument, it may come down to one judge: a conservative named Jeffrey Sutton.

6Attorneys for Michigan, Ohio, Kentucky, and Tennessee took turns arguing that the bans are justified because only opposite sex couples procreate naturally. Judge Martha Craig Daughtry questioned how it was possible that keeping gays out of the institution of marriage could in any way help or encourage heterosexuals to give birth to more kids. One attorney even cited the decreased birth rates in Europe and Russia as a reason for encouraging opposite sex couples to marry. But, as Judge Daughtrey, the most vocal judge, noted, it is unclear how discriminating against gays achieves that goal.

Judge Deborah Cook spoke the least. She has a history of anti-plaintiff, conservative decisions on discrimination. When she did speak, she seemed to suggest that states have broad power to regulate marriage and could maintain traditional institutions as they see fit.

Judge Sutton is a bit of a wild card. A conservative -- he wrote in the Harvard Law Review: "Count me as a skeptic when it comes to the idea that this day and age suffers from a shortage of constitutional rights" -- Judge Sutton voted in favor of the constitutionality of Obamacare and does not always follow a party line. His questioning was back and forth, balanced between the sides. A review of his questions and a cursory analysis of some of his writings and decisions suggest that he is primarily concerned with judicial modesty and restraint. He thinks that the federal courts have done too much, creating new rights and reading rights and regulations into the Constitution that do not belong.

It is unclear whether that preference for restraint means that he will deny that a right to marry exists for gay couples.

He wondered if his court could even make a decision or whether the judges were bound by a 1971 Supreme Court decision (Baker v. Nelson) that said that marriage lawsuits do not belong in the federal courts. Almost every other court to address marriage equality addressed and dismissed the Baker canard: gays had not recognized federal rights in 1971; today, after Windsor, after Lawrence, and after Romer, is a different time. Judge Sutton didn't seem too sure.

I Screen Shot 2014-08-07 at 5.39.25 PMf he could get passed the Baker threshold, Judge Sutton still was holding his cards close to his chest. He was pretty clear that the states could not win if antigay discrimination merited some form of heightened scrutiny, but he did not hint that he was leaning in the heightened scrutiny direction.

Perhaps the most interesting part of Judge Sutton's questioning came later in the day when he wondered aloud if the plaintiffs in the cases really want the courts to get involved when the marriage equality movement seems to be gaining political steam and social esteem. Judge Sutton implied, true to his radical vision of judicial abdication of responsibilities, that political outcomes are somehow more legitimate than judicial ones.

It is hard to imagine that view as a legitimate basis for deciding against the marriage equality. Judge Sutton has written a lot about how federal judges do too much. He would prefer that judges take a back seat to the political process, an entirely conservative position given the greater access that money and majorities have to political votes. But just because he prefers judges abdicate their constitutional responsibilities should not absolve him of actually deciding the legal questions before him. The legal questions involve equality and fundamental rights, not some policy preference for more judicial modesty.

This is why marriage equality hangs in the balance. Judge Sutton was not clear where he stands. 

***

Follow me on Twitter and on Facebook. Check out my website at www.ariewaldman.com.

Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently pursuing his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.


A Few Takes on Yesterday's Historic Gay Marriage Arguments at the Sixth Circuit Court of Appeals

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Here are a few takes on yesterday's historic hearing of six separate gay marriage cases from Ohio, Kentucky, Michigan, and Tennessee, at the Sixth Circuit Court of Appeals. Above, Judges Martha Daughtrey, Jeffrey Sutton, and Deborah Cook.

Our legal editor Ari Ezra Waldman posted a preview of the arguments yesterday and will have some analysis coming up. For now, here are a few excerpts from various media reports.

Listen to audio from the proceedings HERE.

The Washington Blade:

Based on their line of questioning, two judges — U.S. Circuit Judge Martha Craig Daughtrey and U.S. Circuit Judge Jeffrey Sutton — seemed prepared to rule against bans on same-sex marriage. The remaining judge, U.S. Circuit Judge Deborah Cook, was relatively quiet, but appeared poised to rule in favor of the laws. Similar to other federal appeals courts, the panel seems headed to make a 2-1 decision in favor of marriage equality.

Although Sutton didn’t make an effort to telegraph how he’d rule, throughout his questioning he suggested he believes  prohibition on gay nuptials are unconstitutional. Ruminating on the changing societal perception of marriage, Sutton said a ban a same-sex marriage “seems to hard to justify even on rational basis grounds” if the institution is intended to express love and commitment.

That said, Sutton also had tough questions for attorneys seeking to overturn bans on same-sex marriage, posing the inquiry of why the LGBT rights movement would want to proceed through the judicial process — as opposed to legislative and ballot process — if the desired result was changing hearts and minds to achieve greater acceptance.

The NYT:

In three hours of back-and-forth questioning, it appeared that neither side could take victory for granted in the United States Court of Appeals for the Sixth Circuit, where the cases from Kentucky, Michigan, Ohio and Tennessee were heard by two judges appointed by President George W. Bush and one by President Bill Clinton.

Judge Jeffrey S. Sutton, one of the Bush appointees and a likely swing vote among the three, repeatedly asked why gay rights advocates wanted to use the courts to hasten an outcome they were gradually winning through elections and changes in attitude.

“I’d have thought the best way to get respect and dignity is through the democratic process,” he said, expressing a view that, in practice, would most likely deliver a victory to the states seeking to keep bans on same-sex marriage.

The Washington Post:

It became clear after three hours of arguments that the panel could become the first roadblock for proponents of same-sex marriage who have had an extraordinary winning streak in knocking down state restrictions following a landmark decision by the Supreme Court in 2013.

That 5 to 4 ruling struck down the part of the federal Defense of Marriage Act that defined marriage as only between a man and a woman.

But a panel of three randomly chosen judges of the U.S. Court of Appeals for the 6th Circuit left questions about whether it would follow the lead of two other appeals courts. Those courts said the reasoning of the Supreme Court’s decision meant that states lacked the right to limit marriage to opposite-sex couples and to deny recognition of unions conducted elsewhere.

Al Jazeera:

Cook, also a Bush appointee, was largely silent throughout the afternoon, with the exception of a few questions that seemed intended to help anti-gay-marriage attorneys hone their arguments. She is so known for her conservatism that she was on the short-list to be appointed to the Supreme Court for the vacancy filled by Samuel Alito.

One concern for Sutton was the fact that the Supreme Court passed last year on a prime opportunity to assert a federal right to marriage. At the same time the high court considered the Windsor case, it also dealt with Hollingsworth v Perry, an appeal of a federal court in California’s decision to strike down a gay marriage ban put in place by voters in 2008 via Proposition 8. The court dismissed that case — and in the process let the California decision stand — on technical legal grounds unrelated to the question of gay rights.

“It does seem fair to say the Supreme Court’s trajectory favors” the pro-gay side, Sutton said. Citing cases that went in favor of gay rights, he then noted, “but they didn’t reach today’s issue in Hollingsworth.”

The 6th Circuit presents gay marriage foes with their best opportunity so far to halt an unbroken streak of more than 30 state and federal cases that have gone for pro-gay groups since Windsor. Sutton and Cook are both appointees of the Bush administration, which vetted federal judge candidates to ensure their conservative bona fides.

That’s a shift from the 4th and 10th circuit panels, which were dominated by more liberal or moderate appointees. In all, 15 of the 22 federal judges who have ruled on gay-marriage bans were Democratic appointees.

The AP:

Constitutional law professors and court observers say that the 6th Circuit could be the first to uphold statewide bans on gay marriage following an unbroken string of more than 20 rulings in the past eight months that have gone the other way.

They point to Sutton, the least predictable judge on the panel. In 2011, he shocked Republicans and may have derailed his own chances to advance to the U.S. Supreme Court when he became the deciding vote in a ruling that upheld President Barack Obama's health care law.

If the 6th Circuit decides against gay marriage, it would create a divide among federal appellate courts and put pressure on the U.S. Supreme Court to settle the issue in its 2015 session. The panel did not indicate when it would rule.


Six Marriage Equality Cases at the Sixth Circuit Today: A Preview

6thcircuit

BY ARI EZRA WALDMAN

The Cincinnati-based Sixth Circuit Court of Appeals will hear oral arguments in a series of marriage equality cases today from the jurisdiction's four constituent states: Kentucky, Michigan, Ohio, and Tennessee. It is an unprecedented coming together of marriage equality litigation that has the potential to change the destiny of marriage in the federal courts for several reasons:

6thcircuitFirst, these cases cover the entire Sixth Circuit and any decision could affect all of them directly, even if a decision is stayed pending appeal to the Supreme Court. We have seen this happen in the Fourth Circuit, where the appellate court overturns a ban on marriage equality and other states in the circuit, North Carolina and West Virginia, either stop defending their own bans or take other pro-equality actions because they see the writing on the wall even though the decision is stayed pending appeal.

Second, the three-judge panel reflects the right-of-center tilt of the circuit, consisting of a Clinton appointee and two George W. Bush appointees, one of whom has made his fiercely conservative views public.

And, third, as the third federal appeals court to hear a post-Windsor marriage case -- after the Tenth (the Utah case) and the Fourth (the Virginia case), but before the Seventh (on August 26), the Ninth (on September 8), and at some point, the Fifth -- the Sixth Circuit is being watched to determine if a pattern is emerging among the circuits or if there will be a split among the panels.

AFTER THE JUMP, I summarize the cases and briefly profile the judges on the panel. I will also discuss a few things to watch for during the marthon oral argument, scheduled to being at 1 PM.

CONTINUED, AFTER THE JUMP...

Continue reading "Six Marriage Equality Cases at the Sixth Circuit Today: A Preview" »


Sixth Circuit Court of Appeals to Hear Six Marriage Equality Cases in One Day on August 6

The Sixth Circuit Court of Appeals is lining up the cases for a pretty impressive combo score on August 6th and will be hearing six discrete marriage equality cases from Kentucky, Michigan, Ohio, and Tennessee.

6thcircuitFrom the National Center for Lesbian Rights:

On August 6, the U.S. Court of Appeals for the Sixth Circuit will hear oral argument in six marriage equality cases--the most marriage cases that any federal circuit court has ever heard in a single day, and the fourth argument to be heard by a federal circuit court since the United States Supreme Court's decision last summer striking down the Defense of Marriage Act (DOMA).

Federal Judges Martha Craig Daughtrey, Jeffrey S. Sutton, and Deborah L. Cook will hear the challenges to laws banning marriage equality in Kentucky (two cases), Michigan, Ohio (two cases), and Tennessee. The National Center for Lesbian Rights is representing plaintiffs in Tennessee, American Civil Liberties Union is representing plaintiffs in Ohio, and Lambda Legal is representing plaintiffs in Ohio.

Oral arguments will begin at 1pm ET at the Potter Stewart Courthouse in Cincinnati, Ohio.


Kentucky Gay Marriage Plaintiff Timothy Love Discusses Heyburn Ruling: VIDEO

Timothy love

In a July 3rd ruling, Judge John G. Heyburn struck down Kentucky’s ban on same-sex marriage.  

The news came with the announcement last week that Highland Baptist Church in Kentucky plans to marry David Bannister and Steven Carr in May 2015.

Although Heyburn ruled that "long-held religious beliefs do not trump the constitutional rights of those who happen to have been out-voted," he stayed the ruling until the 6th U.S. Circuit Court of Appeals decides same-sex marriage cases from Kentucky and three other states, including the June 25 striking down of Indiana’s same-sex marriage ban and the 10th Circuit Court of Appeals' ruling in Utah which ruled broadly in favor of marriage equality.

Kentucky Governor Steve Beshear has hired an out-of-state law firm to handle the appeal after Attorney General Jack Conway declined to appeal the ruling.  According to USA Today, Beshear's arguments are "not those of serious people."

Beshear's lawyers will make their arguments to reverse Heyburn's ruling on August 6.

Read Ari Ezra Waldman’s review of Heyburn’s ruling and watch lead plaintiff Timothy Love discuss the case, AFTER THE JUMP...

Continue reading "Kentucky Gay Marriage Plaintiff Timothy Love Discusses Heyburn Ruling: VIDEO" »


Kentucky Baptist Church To Perform Same-Sex Marriage Next Year - VIDEO

Highland baptist church kentucky

In a break with most of the church’s denominations, Highland Baptist Church in Kentucky announced it will marry couple David Bannister and Steven Carr next May.

Highland, which will become the third Baptist church in the area to perform same-sex weddings, is considered to be at the more liberal end of the congregation’s spectrum. In 2012, Highland ordained openly gay Minister Maurice Blanchard.

The news comes following a wave of recent pro-equality judicial decisions, including the June 25 decision in Indiana that struck down that state's marriage ban, the 10th Circuit Court of Appeals' ruling in Utah which ruled broadly in favor of marriage equality, and a July 1 decision that found Kentucky has no constitutional right to ban same-sex couples from marrying.

Although U.S. District Judge John G. Heyburn II ruled in the Kentucky decision that "long-held religious beliefs do not trump the constitutional rights of those who happen to have been out-voted," he stayed the ruling until the 6th U.S. Circuit Court of Appeals decides same-sex marriage cases from Kentucky and three other states, according to The Courier-Journal.

Kentucky Governor Steve Beshear has hired a law firm to handle the appeal after Attorney General Jack Conway declined to appeal the ruling. 

Speaking to The Courier Journal, Pastor Joe Phelps said that the decision to perform the marriage has upset some members of the congregation, who have nonetheless taken the decision to stay with the church.

Sam Marcosson, a law professor at the University of Louisville, said:

"What Highland is really doing is what churches do on important issues. They're taking a stand in order to influence their community and move their community in a certain direction."

Beshear's lawyers will make their arguments to reverse Heyburn's ruling on August 6.

Watch a report on Heyburn's decision to overturn the ban on same-sex marriage in Kentucky, AFTER THE JUMP...

Continue reading "Kentucky Baptist Church To Perform Same-Sex Marriage Next Year - VIDEO" »


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