Sixth Circuit Gay Marriage Opinion Essay

Tag Archives: Gay Marriage

Video Interview: Sixth Circuit in National Media Spotlight Following Last Thursday’s Same-Sex Marriage Ruling; Our Bloggers Offer Their Own Insights And Analysis

The Sixth Circuit has been in the national media spotlight following last Thursday’s high-profile decision upholding same-sex marriage bans in Ohio, Michigan, Kentucky, and Tennessee.  See Opinion (6th Cir. Case Nos. 14-1341; 3057; 3464; 5291; 5297; 5818).  We covered the Sixth Circuit’s decision here only hours after it was decided.  The Court’s decision is the first … Continue Reading


Major news coming out of the Sixth Circuit today.  In a landmark (but divided) ruling, the Sixth Circuit has upheld same-sex marriage bans in Ohio, Michigan, Kentucky, and Tennessee.  See Opinion (6th Cir. Case Nos. 14-1341; 3057; 3464; 5291; 5297; 5818).  As we previously have covered, district courts in each of these four states had ruled … Continue Reading

Still Waiting on Sixth Circuit’s Same-Sex Marriage Rulings As U.S. Supreme Court Denies Cert Petitions In Same-Sex Marriage Appeals From Three Other Circuits

Earlier this morning, the U.S. Supreme Court denied seven cert petitions from five states, including Utah, Oklahoma, Virginia, Wisconsin, and Indiana, seeking review of rulings from the Fourth, Seventh, and Tenth Circuits striking down bans on same-sex marriage.  The High Court’s timing is uncanny because it was exactly two months ago today (August 6) that … Continue Reading

Sixth Circuit In National Media Spotlight Following Last Week’s Marathon Oral Arguments In Same-Sex Marriage Appeals

During the last five days, a media spotlight has been cast on the Sixth Circuit as legal pundits and observers try to dissect last Wednesday’s oral arguments in the same-sex marriage appeals before the Court.  The three-judge panel which heard the appeals included Judges Martha Craig Daughtrey of Tennessee, Jeffrey Sutton of Columbus, and Deborah … Continue Reading

Sixth Circuit Same-Sex Marriage Appeals Generating National Interest; Media Turning to Sixth Circuit Appellate Blog For Insight And Analysis

As we reported two weeks ago, the Sixth Circuit is gearing up to hear no less than five appeals tomorrow in the battle over same-sex marriage.  The Court is expecting such a large crowd that it has issued a notice to the public and the media concerning the oral arguments and has designated two overflow … Continue Reading

Sixth Circuit Gearing up to Hear Same-Sex Marriage Appeals on August 6, 2014

Wednesday, August 6, 2014 will be a high-profile day at the Sixth Circuit as the Court will hear arguments in five appeals in the battle over same-sex marriages.  Below are the cases on the Court’s calendar: DeBoer, et al. v. Snyder, et al., Case No. 14-1341:  An appeal from a March 21, 2014 order by … Continue Reading

Sixth Circuit Timing Means That 300 Same-Sex Couples in Michigan Are In Legal Limbo While Gay Marriage Appeal Goes Forward

As you know from our recent coverage, Judge Bernard A. Friedman of the Eastern District of Michigan entered an order late in the day on Friday, March 21, 2014 striking down Michigan’s ban on same-sex marriage as violating the Equal Protection Clause of the Fourteenth Amendment.  See Judgment, DeBoer, et al. v. Snyder, et al., … Continue Reading

Sixth Circuit Rules: No Gay Marriage in Michigan While Michigan’s Appeal is Pending

This past Sunday, we reported on how the Sixth Circuit had acted swiftly in issuing a temporary stay of last Friday’s order by Judge Bernard A. Friedman of the Eastern District of Michigan which struck down Michigan’s ban on same-sex marriage.  See Judgment, DeBoer, et al. v. Snyder, et al., Case No. 12-cv-10285 (E.D. Mich.).  … Continue Reading

24 Hours After A Michigan Federal Judge Strikes Down Michigan’s Ban on Same-Sex Marriage, The Sixth Circuit Stays The Decision (At Least For Now)

As we reported this past week, Judith Ellen Levy was sworn in on Tuesday as the first openly gay federal judge in the Sixth Circuit.  Levy was nominated by President Obama back on July 25, 2013 to serve as a U.S. District Court Judge in the U.S. District Court for the Eastern District of Michigan … Continue Reading

Kentucky Same-Sex Marriage Ruling Heads To The Sixth Circuit Unenforced As The First Openly Gay Judge In The Sixth Circuit Takes Her Oath

It’s the first day of Spring at the Sixth Circuit, and the new season promises new skirmishes in the ongoing legal battles over same-sex marriages. Last month, we reported on the plaintiffs’ request in Obergefell, et al. v. Wymyslo, et al. (6th Cir. Case No. 14-3057), seeking expedited briefing and argument in their high-profile case … Continue Reading

Same-Sex Marriage Issue Could Be Fast Tracked at Sixth Circuit

How will the Sixth Circuit rule on the high-profile issue of whether the State of Ohio constitutionally is required to recognize, on an Ohio resident’s death certificate, a same-sex marriage that was lawfully performed in another state? We may find out sooner rather than later. On Valentine’s Day, the plaintiffs in Obergefell, et al. v. … Continue Reading

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The power not to decide is sometimes as important as the power to decide. To the surprise of virtually everyone, on Monday morning the Supreme Court denied review in all of the marriage equality cases pending before it. That leaves standing decisions from three federal appeals courts declaring that bans on same-sex marriage in Indiana, Oklahoma, Virginia, Utah, and Wisconsin are unconstitutional. As a result, same-sex marriages will now go forward in those states. Indeed, Virginia announced that it began recognizing same-sex marriages as of 1 PM Monday. In short order, six other states will follow—Colorado, Kansas, North Carolina, South Carolina , Wyoming, and West Virginia—because they are within the circuits governed by those same federal appellate courts. Final Supreme Court resolution of the issue will await another day—and in all likelihood, another year. But the decision not to intervene is a huge win for marriage equality.

It is also a prudent if unusual act of judicial statesmanship. The Court virtually always grants review where lower courts have declared a federal or state law unconstitutional, because judicial invalidation of a democratically enacted law thwarts the will of the people. That is why the Court granted review last year when the US Court of Appeals for the Ninth Circuit declared unconstitutional Proposition 8, a California ballot initiative that denied marriage to same-sex couples. (In that case, Hollingsworth v. Perry, the Court ultimately avoided a decision on the merits, concluding that because the state was not defending the validity of the law, the appeal was not properly before it.) And in all of the cases the Court ruled on Monday, the lawyers for both the states, who were appealing, and the plaintiffs, agreed that the Court should review the cases, in view of the importance of the issue. Yet the Court disagreed with them all, and chose, for now, to sit out.

Of course, the Supreme Court has absolute discretion to grant or deny review without explanation of the thousands of petitions presented to it. The Court grants review of less than one hundred appeals each year, and generally only in those cases where there is a conflict among the appellate courts that requires its resolution, or where the issues presented are of extraordinary significance. As yet, there is no “split” among the courts of appeals on marriage equality, and Justice Ruth Bader Ginsburg recently suggested that the Court need not take up the matter until there is. Last term, in United States v. Windsor, the Court invalidated a federal law that denied benefits to same-sex couples married in states that recognized same-sex marriage, and even though the Court was careful not to resolve the issue of state power to deny recognition to same-sex marriage, every court of appeals to address the issue since has declared unconstitutional states’ refusal to recognize same-sex couples’ right to marry on the same terms as opposite-sex couples.

Nevertheless, in the present case, five state laws had been declared unconstitutional, frustrating popular will in those states, and all parties agreed that the cases should be heard. So why did the Court stay its hand? It likely did so for much the same reason it avoided a decision on the merits in the Proposition 8 case last term. A dispositive ruling in favor of the challengers would likely have required every state in the union immediately to recognize marriage equality—at a time when the majority of states do not, and many states have affirmatively amended their state constitutions to underscore their antipathy to doing so. In the past, judicial decisions that have gotten too far out ahead of the populace have occasionally sparked a backlash, and the Court may well want to avoid that this time.

The direction the country is moving on marriage equality, however, is clear. Since last term’s decisions in the California Proposition 8 case and Windsor, eighty-one federal cases in thirty-two states have been filed challenging laws denying recognition of same-sex marriage. Forty-one decisions have ruled in favor of the challengers, while only two trial courts have gone the other way, and those cases are on appeal. Meanwhile, every time another poll is taken on the subject, popular support for marriage equality increases. The fact that gay and lesbian couples have been getting married in states across the country for about a decade, without any untoward effects on opposite-sex marriage, has demonstrated that the concerns of those who opposed marriage equality were unfounded. Allowing adults who love one another enter a committed relationship is a net gain for society, whether they are gay or straight.

The Court’s denial of review is a promising outcome for the cause of marriage equality not only because it expands same-sex marriage to five states. It’s also a sign of how the Court will ultimately rule on the issue. Had five justices felt that the lower courts were getting it wrong, they certainly would have granted review, and overturned those decisions. (It only takes four votes to grant review, but justices often are disinclined to grant review if they can’t see a fifth vote on their side.) The longer the Court waits to decide the matter, the more likely it will ultimately rule in favor of marriage equality. On evolving questions like this, the Court rarely issues decisions that contradict historical developments. And, as noted above, the more same-sex couples who marry, the weaker the arguments of those who insisted that the sky will fall if such marriages take place.

Monday’s decision means that the Court is unlikely to take up this issue until a federal court of appeals rules against marriage equality. That may never happen, in which case marriage equality will be won without the need for Supreme Court intervention at all. Court watchers think that a three-judge panel of the US Court of Appeals for the Sixth Circuit in Cincinnati, Ohio, may rule the other way, based on the panel’s questioning at oral argument in August in consolidated appeals from decisions striking down four states’ bans on gay marriage. But even if the panel declines to invalidate the state bans—parting company with all the other courts of appeals thus far—the case may not go to the Supreme Court. The challengers would very likely seek en banc review by all of the Sixth Circuit judges sitting together, and they might well agree with the other courts of appeals, and overturn the panel decision. In any event, that case is not likely to reach the Court until next year.

It is natural to want resolution of this issue at once—especially if one thinks the ultimate resolution will favor the freedom to marry. But patience, in this case, is a virtue. The road to the freedom to marry has been an incremental one, beginning in Hawaii in the mid-1990s, and proceeding state by state through Vermont, Massachusetts, California, Iowa, Connecticut, and many others. The Constitution is designed to evolve slowly, and compared to other constitutional developments, progress on the freedom to marry has been unusually swift. It will take at least another year or so, but its course now seems certain. The Court’s surprising decision not to interfere with this steady evolution means that progress will continue, as it most certainly should, without the need for a Supreme Court ruling. Sometimes the wisest course when one sees progress is simply to keep out of the way.

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