Sixth Circuit Upholds Kentucky's Ban on Same-Sex Marriage; Next Stop Supreme Court?

On November 6, 2014, the Sixth Circuit, the federal circuit to which Kentucky belongs, overruled Judge John G. Heyburn's opinions in Bourke v. Beashear and Love v. Beshear.  If you have not read those opinions, they are both worth a read as Judge Heyburn does an excellent job of explaining both sides of the argument as well as some of the history behind other forms of marriage prohibitions that the United States has held throughout its past.

The Sixth Circuit's decision was a 2-1 split decision with Chief Martha Criag Daughtry dissenting.  This ruling upholds same-sex marriage bans in Michigan, Ohio, Tennessee as well as Kentucky.  The majority decision itself seems more of an argument against activist judges.  In the opinion, written by Judge Jeffrey Sutton and joined by Judge Deborah Cook, the Court says, “When the courts do not let the 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.”

It seems to me that the majority opinion paints with a pretty broad brush.  The court overruled all of the decisions before it including Bourke v. Beshear.  The thing about the Bourke decision is that, at its core, it was a full-faith and credit case which said that Kentucky had to recognize same-sex marriages performed in other states.  Failing to do so violated not only the equal protection clause but also the full faith and credit clause.  Moreover, this has a long historical precedent that strikes particularly close to home for me.  My grandparents eloped when they were teenagers and too young to get married in Kentucky.  They went to Mississippi where the age of consent was younger, got married and returned home to Kentucky.  They did not magically become unmarried when they crossed the state line.  Judge Heyburn's ruling basically said the same thing happens for same-sex couples and they should be able to enjoy the benefits of marriage in the Bluegrass State such as intestacy laws, filing joint tax returns, employee benefits, etc.

The dissent confronts the majority opinion and chides the other two judges for attempting to engage in "an introductory course in political philosophy" and refuses to "grapple with the relevant constitutional argument in this appeal."  In the very first line of her dissent, Judge Daughtry uses this quote, “The great tides and currents which engulf the rest of men do not turn aside in their course to pass the judges by,” Benjamin Cardozo, The Nature of the Judicial Process (1921).

At this point the plaintiffs' attorneys could request a full en banc review of the decision.  An en banc review is where the full panel of the Sixth Circuit would review the case.  However, I would imagine that they will choose to move forward to the United States Supreme Court.  The Supreme Court has already denied seven writs of certiorari (requests for review) from five different states (Utah, Virginia, Wisconsin, and Indiana).  Justice Ruth Bader Ginsburg has been quoted as saying that the reason the country's high court has heretofore passed up the opportunity to rule on the issue has been that there has not been a split among the circuits.  That is no longer the case.  The Sixth's Circuit's decision sets up a clear split among the circuits that almost demands that the Supreme Court resolve the conflict.  The Sixth Circuit's decision upholds bans that are almost identical to ones already struck down in thirteen other states.  I think it is likely that a direct appeal to the U.S. Supreme Court will be next if for no other reason than the fact that waiting around for an en banc panel review will almost guarantee that the issue will not be heard during the Supreme Court's current term.

We will just have to wait and see how this issue shakes out.  Regardless of the Sixth Circuit's decision or your personal politics, I think it is pretty apparent that same-sex marriage will be the law of the land within the next five to ten years.

Photo courtesy of Nathan Laurell

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