Will the 6th Circuit Buck the Trend on Marriage Equality?

Since the Supreme Court handed down its ruling in Windsor a little over a year ago, every single federal court that has heard a challenge to a state law banning same-sex marriage has ruled in favor of equality. Mark Joseph Stern thinks that streak may end with the 6th Circuit Court of Appeals, which heard oral argument in four cases (Michigan, Ohio, Kentucky and Tennessee) last week.

The heady era of the post-Windsor winning streak may soon come to a crashing halt.

That’s the message that Judge Jeffrey Sutton seemed to telegraph during Wednesday’s gay marriage oral arguments at the 6th Circuit. Sutton is the swing vote on the circuit panel: To his left is Judge Martha Craig Daughtrey, a Clinton appointee and staunch liberal; to his right is Judge Deborah Cook, a thoroughly right-wing George W. Bush appointee. Sutton, also placed on the bench by Bush, is a genuine conservative and a former clerk of one Justice Antonin Scalia. (Scalia calls him “one of the very best law clerks I ever had.”) But ever since Sutton upheld Obamacare in 2011, he’s been lauded on the left for his judicial independence.

Will that independence lead Sutton to strike down gay marriage bans in Michigan, Kentucky, Ohio, and Tennessee? Or will his conservatism push him to uphold the states’ laws? Based on Wednesday’s arguments, marriage advocates have good reason to worry. Unlike Cook, who clearly viewed gay marriage prohibitions as a rational state policy, Sutton seemed to scowl at the prospect of excluding an entire class of people from marriage. But unlike Daughtrey—who fiercely questioned the state’s interest in discriminating against gays at every turn—Sutton appeared exceedingly hesitant to bring gay marriage to America through judicial fiat.

It should be noted, however, that many of the judges who have ruled against same-sex marriage bans in other states were also conservatives appointed by Republicans. There’s a part of me that hopes that this panel does uphold those laws, if only because it will force the Supreme Court to rule on the subject next term.

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  • http://www.thelosersleague.com theschwa

    Yes they will. The 6th includes Ohio. I live in Ohio. Ohio is filled with idiots. (That is probably why it is swing state).

  • Chiroptera

    Will that independence lead Sutton to strike down gay marriage bans in Michigan, Kentucky, Ohio, and Tennessee?

    This may have been intended more as literary flourish, but I have to point out that ruling against marriage equality doesn’t by itself mean that Sutton isn’t independent. It may very well be that whatever makes him independent will lead him to a different conclusion than others.

  • Synfandel

    There’s a part of me that hopes that this panel does uphold those laws, if only because it will force the Supreme Court to rule on the subject next term.

    I understand you’re something of a poker player, Ed. Do you think marriage equality has jacks or better at the Supreme Court table?

  • Alverant

    FIve members of the USSC has demonstrated they think that religious opinions should be given preference to the rights of others. So I’d rather the question of marriage equality not be presented to them until we get some judges who put the US Constitution above the chrisitian bible.

  • marcus

    As much as I hope that equality, and rationality, prevails once again, it does seem unrealistic to expect that every ruling is going to be rationally based, especially when the rulings often hinge on the vote of a single person.

  • D. C. Sessions

    There’s a part of me that hopes that this panel does uphold those laws, if only because it will force the Supreme Court to rule on the subject next term.

    Ed, nothing can force the Supreme Court to take a case.

    I can readily see four votes for equality and four votes against, neither side wanting to bet in Kennedy, and Kennedy not wanting the hot potato that he outspokenly dodged before.

    Dead serious: I can see this one getting zero votes for cert.

  • colnago80

    Re D. C. Sessions @ #6

    True but, if the 6th Circuit upholds the laws, that presents a disagreement between Circuits which will pressure the SCOTUS to take one of the appeals. So far, 2 Circuits have voted to upheld District court decisions to overturn laws banning same sex marriage. If the 6th Circuit votes to overturn the laws in those states, that leaves us, so far, with unanimity between the Circuits and the SCOTUS then can punt, which seems to be their inclination as we sit here today.

  • John Pieret

    Lyle Denniston at SCOTUSblog also has a good discussion of the “winning streak” (which hasn’t been quite as complete as it sometimes seems).

    http://www.scotusblog.com/2014/08/the-marriage-ruling-streak-and-what-it-means-made-simple/

    One other factor is that SCOTUS has put the Utah decisions on hold and may have to do the same with the 4th Circuit case because that court refused a stay of enforcement. It would be highly unusual for SCOTUS to place stays on Circuit Court decisions and then refuse cert (though, in refusing cert, it could lift the stays).

  • D. C. Sessions

    It would be highly unusual for SCOTUS to place stays on Circuit Court decisions and then refuse cert (though, in refusing cert, it could lift the stays).

    I would think that a refusal of cert would automatically end all stays pending appeal to the SCOTUS, by definition. Otherwise it would be a reversal without hearing.

  • gshelley

    If it does end, how will they do it?

    I imagine they couldn’t go with any higher form of scrutiny, but some of the decisions (Michigan for sure) showed it didn’t even pass rational basis.

    Will they have to find some way of justifying the link between the states stated aims and the laws? Or will they merely get away with saying the state believes it and that is good enough, despite there being no reasonable way the state could hold on to such views in light of the original decision? Or could they just say it doesn’t matterr, and just wanting to ban SSM is good enough reason?