The U.S. Supreme Court Will Soon Decide Whether the Fourteenth Amendment Affords Same-Sex Couples Nationwide the Right to Marry

Paula Lopez, January 22, 2015.

On Friday, January 16, 2015, the Supreme Court agreed to hear an appeal in four consolidated cases[i], challenging the Sixth Circuit Court of Appeals’ decision upholding same-sex marriage bans in Michigan, Kentucky, Tennessee, and Ohio.  The Supreme Court’s decision to finally take up the issue of gay marriage was foreseen by Justice Ruth Bader Ginsburg, who told a Minnesota audience in September 2014 that if the Sixth Circuit’s forthcoming decision created a split among the circuits by deviating from other decisions striking down such bans, there would “be some urgency” for the Supreme Court to step in and decide the issue.  This is precisely what happened.

The Sixth Circuit’s decision is in stark conflict with decisions from the Fourth, Seventh, Ninth and Tenth Circuits—which have all held similar state bans on same-sex marriages to be unconstitutional. In large part due to district and circuit court decisions invalidating state bans on same-sex marriages, there are currently 36 states, along with the District of Columbia, that allow same-sex marriage.  It is now up to the Justices of the Supreme Court to resolve the split created by the Sixth Circuit’s ruling and hopefully resolve one of the most important civil rights issues of the 21st century.

In its decision granting certiorari, the Supreme Court limited the issues to be heard on appeal to two questions:

  1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
  2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

Question 1 will be the subject of 90 minutes of oral argument and Question 2 will be the subject of 60 minutes of oral argument.  Final briefs are to be filed by April 17, 2015 and it is expected that argument will be heard soon after.  A decision will be rendered before the end of the Court’s Term in late June 2015.

The Sixth Circuit cases were brought by 16 couples who challenged state bans to same-sex marriages and their implications.  One couple challenged Michigan’s state law, which defined marriage as a relationship between one man and one woman and which refuses to recognize any other unions, on the grounds that it violated the due process and equal protection guarantees of the Fourteenth Amendment.  The couple challenged the law because they wanted to both be recognized as adoptive parents to each other’s adopted children so that in the event something happens to one of the parents, the family would not be split up.  However, Michigan’s adoption laws do not permit unmarried couples to adopt jointly.  After trial, the district court rejected Michigan’s bases for its marriage law, finding that the law could not satisfy rational basis review because it was not rationally related to a legitimate governmental objective.

The cases from Kentucky involve challenges by two groups of couples.  One group, comprised of two couples, challenged the state’s marriage licensing law on the basis that the Fourteenth Amendment prohibits Kentucky from denying them marriage licenses.  The district court ruled for the plaintiffs finding that Kentucky could not show a rational basis for its definition of marriage.  The second group, comprised of four couples, challenged the portion of Kentucky’s law that refuses to recognize out-of-state same-sex marriages and sought to enjoin enforcement of the law.  The basis for the challenge is that the ban violates their due process and equal protection rights.   The district court also ruled for the plaintiffs in holding that Kentucky’s recognition ban could not survive rational basis review.

Ohio’s law refusing to recognize out-of-state same-sex marriages was challenged by two groups of plaintiffs on different grounds.  One group, comprised of two couples, challenged Ohio’s refusal to recognize their out-of-state marriages on Ohio-issued death certificates on the basis that the refusal violates their due process and equal protection rights.  After their spouses died, the surviving spouses, along with a funeral director (who joined in the suit) sought an injunction to require Ohio to list them as spouses on the death certificates. The district court ruled in favor of the plaintiffs finding, inter alia, that there is a fundamental right to keep existing marriages intact, classifications based on sexual orientation deserve heightened scrutiny, and Ohio failed to justify its law under either heightened scrutiny or rational basis review.

The second group, comprised of four same-sex couples married outside Ohio, sought to have Ohio recognize their marriages on their children’s birth certificates by listing both their names on the birth certificates.  In the case of three couples, the children were born in Ohio, while the fourth couple lives in New York but adopted a child born in Ohio.   The district court, on grounds similar to the other Ohio case, ruled in favor of the plaintiffs but expanded its remedy of the State’s recognition ban to include all same-sex couples and all legal incidents of marriage under Ohio law, not just the right to be listed as a parent on their children’s birth certificate.

The Tennessee case involved three same-sex couples challenging Tennessee’s law refusing to recognize their out-of-state same-sex marriages.  The district court relied on other district court decisions within the circuit and elsewhere in preliminarily enjoining Tennessee from enforcing the law.  Based on existing precedent, the district court determined that the plaintiffs would likely prevail on the merits of the case by showing that Tennessee’s recognition ban fails to satisfy rational basis review.

All four states appealed the district courts’ decisions.  In a split decision of 2 to 1, the Sixth Circuit upheld Michigan, Kentucky, Ohio, and Tennessee’s laws banning same-sex marriage and/or refusing to recognize out-of-state same-sex marriages.  The Sixth Circuit’s majority decision, authored by Judge Jeffrey Sutton, rejected the challenges to the laws finding that they do not violate the Fourteenth Amendment of the Constitution because under Judge Sutton’s interpretation of the original meaning of the Fourteenth Amendment there is no right to same-sex marriage.

In support of its decision, the Sixth Circuit considered itself bound by an 11 word Supreme Court ruling from 1973 in Baker v. Nelson, in which the Court rejected an appeal by a same-sex couple who was denied a marriage license by the state of Minnesota.  In rejecting the appeal, the Supreme Court stated that the appeal did not raise a “substantial federal question.”  Permeating throughout the Sixth Circuit’s decision is the majority’s belief that laws relating to marriage should be decided by the states in accordance with their legislative process and that any meaningful change to such laws should be accomplished through majority popular vote and not through the judiciary.  Under this back drop, the Sixth Circuit’s majority ruling concluded that: (i) states have a rational basis for enacting laws recognizing opposite-sex marriages (rather than addressing the issue of whether states have a rational basis for enacting laws that recognize opposite-sex marriages while excluding same-sex marriages); (ii) there is no unconstitutional animus in laws banning same-sex marriages; (iii) there is no fundamental right to gay marriage; and therefore, (iv) heightened scrutiny does not apply to laws banning same-sex couples from marrying.   The majority’s decision concluded by promoting a “wait and see” approach suggesting that if the Supreme Court takes up the issue it should not rush to constitutionalize a new definition of marriage to include same-sex couples, but should, instead, leave the issue to be resolved by the states and the people through the democratic process.

In dissent, Circuit Judge Martha Craig Daughtrey criticized the majority’s “wait and see” approach and its re-formulation of the issues on appeal.  Judge Daughtrey believed the issue before the Sixth Circuit was whether the states’ laws violate same-sex couples’ rights to equal protection under the Fourteenth Amendment (as had been the approach taken by the majority of the District and Circuit Courts who decided the constitutionality of similar state bans).  Instead, the majority turned the issue into whether the judiciary or the state legislature should decide how a state defines marriage within its borders.

Relying heavily on the reasoning underlying the decisions of the Fourth, Seventh, Ninth and Tenth Circuits in striking down similar state bans on same-sex marriage, Judge Daughtrey (like the district court judges presiding over the four cases on appeal), found that every basis asserted by the defendants for excluding same-sex couples from marrying had been invalidated.  In fact, a decision by the Sixth Circuit affirming the district courts’ rulings seemed the obvious outcome to Judge Daughtrey that she posited whether the majority purposefully took such an incorrect position merely to create the circuit split that would force the Supreme Court to rule on this issue.  Many who read the majority opinion, including myself, probably share in this notion.

Regardless of how the issue of the constitutionality of same-sex marriage reached the Supreme Court, a decision resolving the issue is eminent.

[i] The cases are Obergefell et al. v. Hodges et al. (case no. 14-556), Tanco et al v. Haslam et al. (case no. 14-562), DeBoer et al. v. Snyder et al. (case no. 14-571), and Bourke et al. v. Beshar et al. (case no. 14-574).


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