The petitions for writs of certiorari were granted to the following cases from the 6th Circuit Court of Appeals:
(The case that was appealed to the U.S. Supreme Court from the 6th Cir. Court of Appeals).
Below are excerpts from Ms. Robinson’s published article:
Same-Sex Marriage Bans Upheld in Sixth Circuit Appeals Court Opinion (excerpts with Analysis) provided by Kimberly Robinson
Regardless of when—or if—the Supreme Court does agree to hear the case, the Sixth Circuit’s divided decision makes it the first federal appeals court to uphold a state same-sex marriage ban since the Supreme Court’s landmark decision in United States v. Windsor, 81 U.S.L.W. 4633, 2013 BL 169620 (U.S. June 26, 2013).
Writing for the majority in the Sixth Circuit’s 2-1 decision, Judge Jeffrey S. Sutton said that the issue is “not whether American law will allow gay couples to marry; it is when and how that will happen.”
The court detailed the claims brought by the 16 gay and lesbian couples, noting that all the suits “seek dignity and respect, the same dignity and respect given to marriages between opposite-sex couples. And all come down to the same question: Who decides?”
The court concluded that the matter is reserved for the “less expedient, but usually reliable, work of the state democratic processes,” rather than for federal courts.
The judiciary’s role is limited to the question of whether the 14th Amendment prohibits “a State from defining marriage as a relationship between one man and one woman,” the court said, not “whether gay marriage is a good idea.”
After applying rational basis review, the court answered that question in the negative.
“A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States,” the court said.
In particular, the court said that the states could justify their bans on the procreative purpose of marriage.
“By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring,” the court said.
“That does not convict the States of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring.”
The appeals court also upheld Ohio, Kentucky and Tennessee laws that prohibited recognition of same-sex marriages validly entered into in other jurisdictions.
Judge Deborah L. Cook joined the majority opinion.
Dissenting, Judge Martha Craig Daughtrey criticized what she called the majority’s “false premise—that the question before us is ‘who should decide.’ ”
“In the main, the majority treats both the issues and the litigants here as mere abstractions,” she said.
“Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win ‘the hearts and minds’ of Michigan, Ohio, Kentucky, and Tennessee voters to their cause.”
Daughtrey also appeared to accuse the two judges who signed on to the majority opinion of betraying their judicial oath, saying: “More than 20 years ago, when I took my oath of office to serve as a judge on the United States Court of Appeals for the Sixth Circuit, I solemnly swore to ‘administer justice without respect to persons’ to ‘do equal right to the poor and to the rich,’ and to ‘faithfully and impartially discharge and perform all the duties incumbent upon me … under the Constitution and laws of the United States.’ ”
“If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.”
A follow-up blog will be posted once the U.S. Supreme Court has issued its opinion which should be sometime between April and June this year.