by Mike Andrew -
SGN Staff Writer
Plaintiffs in all six marriage cases turned down by the Sixth Circuit Court have appealed directly to the U.S. Supreme Court for a review of the appellate court's decision.
Meanwhile federal judges struck down marriage bans in Missouri and South Carolina. The U.S. Supreme Court lifted a stay on marriage in Kansas, and at least one county is issuing licenses to Gay and Lesbian couples, but the state's Attorney General insists that same-sex marriage must wait for a state Supreme Court ruling.
Breaking ranks with other circuit courts, a three-judge panel of the Sixth Circuit ruled on November 6 that same-sex marriages bans in Kentucky, Michigan, Ohio, and Tennessee were just fine constitutionally. Plaintiffs could have asked for en banc review, meaning a hearing in front of the full Sixth Circuit, but they chose to go straight to the top - the Supreme Court.
'We just had a conference call with the attorneys from all four Sixth Circuit states on the marriage cases. We were all in agreement to apply for certiorari at the Supreme Court, and not to first seek en banc review in the Sixth Circuit,' Abby Rubenfeld, lead attorney for the Tennessee plaintiffs told BuzzFeed's Chris Geidner on November 7.
Certiorari is a legal writ issued by the Supreme Court, indicating it will hear an appeal.
'Given the significance of the issue, the reality that it will end up in the Supreme Court ultimately, and the harms that all of our clients are suffering each day that their marriages are not recognized, we want to get to the Supreme Court sooner rather than later,' she added.
'We hope to file within two weeks, and hopefully sooner, so that we can still be on the docket for this term - which means resolution by June 30, 2015.'
The high court is not obligated to hear any appeal, but as Justice Ruth Bader Ginsberg has indicated, if appellate courts reach contradictory decisions - and now they have - it is likely the Supreme Court will take up at least one marriage case.
Baker v. Nelson and the Fourteenth Amendment
One of the issues the Supreme Court will have to settle, if it does accept the appeals from the Sixth Circuit, is whether Baker v. Nelson applies at all since the high court's Windsor ruling striking down DOMA.
Baker was a 1971 case in which a Gay couple in Minnesota sued for the right to get married. State courts turned them down, and the U.S. Supreme Court rejected their appeal 'for want of a substantial federal question,' meaning they considered marriage to be a matter for state law.
In his majority opinion for the Sixth Circuit panel, Judge Jeffrey Sutton held that Baker is the applicable precedent for current marriage cases, and requires federal courts to allow same-sex marriage bans if they reflect local views.
Sutton argued that the more recent Windsor decision did not overrule Baker.
'Windsor invalidated a federal law that refused to respect state laws permitting gay marriage, while Baker upheld the right of the people of a State to define marriage as they see it,' he wrote.
On the other hand, in her comments during oral arguments in the Windsor case, Supreme Court Justice Ruth Bader Ginsberg seemed to dismiss Baker as a precedent-setting case.
'The Supreme Court hadn't even decided that gender-based classifications get any kind of heightened scrutiny,' she said. 'And the same-sex intimate conduct was considered criminal in many states in 1971, so I don't think we can extract much in Baker v. Nelson.'
In spite of Sutton's interpretation, the Windsor decision may have changed the legal landscape fundamentally, simply by asserting that same-sex couples have rights that must be respected.
In his majority opinion in Windsor, Justice Anthony Kennedy wrote that defining marriage in a way that disadvantages Gay and Lesbian couples violates their Fifth Amendment equal protection and due process rights.
Kennedy relied on the Fifth Amendment - one of the ten Bill of Rights amendments limiting the power of the federal government - because DOMA was a federal law. However, liberal legal scholars believe that the Fourteenth Amendment 'federalizes' the Bill of Rights. In other words, the Fourteenth Amendment says that states cannot restrict any rights that the federal government is forbidden to restrict.
While Kennedy did also say that states which allow Gay and Lesbian residents to marry should not be subject to federal interference, he did not say that states have complete freedom to limit marriage rights in any way they want.
Therefore, the liberal argument goes, once the high court ruled that Gay and Lesbian couples have rights that the federal government must respect - in this case the right to marry - the Fourteenth Amendment requires states to respect those rights also.
Conservative Justices Anton Scalia and Clarence Thomas are known to have a much more limited interpretation of the Fourteenth Amendment, however, and they are likely to side with Sutton. The outlook for a favorable Supreme Court ruling depends on how many other justices they can persuade to join them.
Is Kansas the crystal ball?
Kansas may be the crystal ball that predicts how the high court might rule if and when it accepts the appeals from the Sixth Circuit.
After the U.S. Supreme Court declined to hear appeals of the Tenth Circuit decision striking down marriage bans in Utah and Oklahoma, U.S. District Judge Daniel D. Crabtree ruled on November 4 that Kansas, which is also under the jurisdiction of the Tenth Circuit, has to comply with the precedent established by the appellate court and allow same-sex marriages.
Supreme Court Justice Sonia Sotomayor granted a temporary stay to allow her colleagues to look at the case, but the full Supreme Court lifted the stay on November 12. Only Justices Scalia and Thomas wanted to keep the stay in place.
While the justices did not comment on their decision, it would be hard to imagine why the court would allow Gay and Lesbian marriages to proceed if they intended to turn around and invalidate them in a later decision.
In fact, marriage equality may already have passed the tipping point. To reverse so many lower court decisions would demoralize the federal judiciary, and throw thousands of existing marriages into legal limbo. No one knows what the Supreme Court will do, but at least at this stage they are showing reluctance to interfere with the progressive legalization of same-sex marriages and that might bode well for the future.
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