Thursday, November 6, 2014

Sixth Circuit creates same-sex marriage split

The United States Court of Appeals for the Sixth Circuit (which covers Michigan, Kentucky, Ohio, and Tennessee) issued an opinion today reversing federal district courts in all four states that had declared unconstitutional their respective states' bans on same-sex marriage.

Last month, the Supreme Court declined to review the decisions of the Fourth, Seventh, and Tenth Circuits that had declared bans on same-sex marriage unconstitutional. Justice Ginsburg's remarks suggest that the Supreme Court declined review because there had been no split of authority among the federal appellate courts.

Shortly afterward, the Ninth Circuit joined the other three circuits in declaring the bans unconstitutional. But the Sixth Circuit's decision now creates a split that could force the Supreme Court to wade into the issue.

The case, called DeBoer v. Snyder, was decided 2-1 with Judge Jeffrey Sutton of Ohio writing for the majority.

The majority opinion
The majority writes that the Supreme Court's 1972 opinion Baker v. Nelson binds the federal district and appellate courts. In Baker, a gay couple sought a marriage license from Minnesota. When the state denied the request, the couple sued, arguing that the denial violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. When the Minnesota Supreme Court rejected the claims, the couple appealed to the Supreme Court.

In a one-sentence opinion, the Supreme Court declined to entertain the appeal in Baker: "The appeal is dismissed for want of a substantial federal question."

Article III of the United States Constitution limits the jurisdiction of federal courts. Unless there is a question under the United States Constitution or federal law, the federal courts do not have the power to adjudicate suits between a state and the citizens of that state.

At first blush, it would seem that the federal courts should have jurisdiction over a constitutional challenge to a state's same-sex marriage ban. But Baker says otherwise, and only the Supreme Court can overrule Baker. If the majority is correct that Baker remains "good" law despite more recent Supreme Court decisions (such as United States v. Windsor, the successful challenge to DOMA), then Baker should end the court's inquiry. The Sixth Circuit should have vacated the district courts' opinions for lack of jurisdiction and dismissed the appeal.

But the majority opinion goes further. The majority believes that the bans' constitutionality should be evaluated under the easy-to-pass "rational basis" test rather than a heightened test. In doing so, the court rejected an argument that the right to marry is a fundamental right guaranteed by the Constitution: "But the right to marry in general, and the right to gay marriage in particular, nowhere appear in the Constitution. That route for recognizing a fundamental right to same-sex marriage does not exist."

The majority concludes that the bans are constitutional under the rational-basis test because the states have at least two permissible justifications for the ban:

  • Promoting procreating couples remaining together. "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."
  • Wait and see. "[A] State might wish to wait and see before changing a norm that our society (like all others) has accepted for centuries."
Judge Sutton, the author of the opinion, is one of the leading "feeder" judges whose clerks go on to clerk on the Supreme Court. (He clerked for Justices Powell and Scalia). Although generally regarded as a conservative, Judge Sutton was the first Republican-nominated judge to rule in favor of the Affordable Care Act's individual mandate. He was joined in the opinion by fellow George W. Bush-appointee Judge Deborah Cook of Ohio.

The Dissent
Judge Martha Daughtrey (a Clinton appointee) dissented from the majority opinion. She rejects the majority's reliance on Baker: "If ever there was a legal 'dead letter' emanating from the Supreme Court, Baker v. Nelson, 409 U.S. 810 (1972), is a prime candidate. It lacks only a stake through its heart." She believes that the Supreme Court has effectively overruled Baker in its line of cases involving gay rights. She also argues that the majority's rational-basis justifications are unavailing.

I predict that the final paragraph of the dissent will be quoted extensively in the press:
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. 
(internal citation omitted).

The majority opinion confuses me. I think reasonable judges could disagree whether Baker remains "good" law. ("Good" in this context means "binding"; I don't think a reasonable judge could say that this constitutional challenge does not pose a "substantial federal question.")

Once the majority concludes that Baker is good law, that means that the federal courts lack jurisdiction to decide the case. But the majority proceeds to the merits of the case anyway. I don't understand how the majority believes it has jurisdiction to do so.

What now?
The same-sex marriage proponents who lost this appeal have three options: (1) appeal to the Supreme Court immediately; (2) appeal to the full Sixth Circuit; or (3) do nothing. SCOTUSblog (and I) think that an appeal to the full Sixth Circuit is the most likely outcome.

DeBoer was heard by a three-judge panel, but the full Sixth Circuit has 15 active judges. The same-sex marriage proponents could ask all 15 judges to hear the case, which is called the "en banc" process. A majority of the active judges on the Sixth Circuit would have to agree to take the case under en banc consideration.

There is no clear test for when a case should be heard before the entire court; the Federal Rules of Appellate Procedure say that en banc review is appropriate only if: "(1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or (2) the proceeding involves a question of exceptional importance."

Although the party of a judge's nominating president is not necessarily a proxy for that judge's views, there is often a correlation. Among the 15 active judges on the Sixth Circuit, 10 were appointed by Republican presidents. Judge Daughtrey, who dissented, is a senior judge who would not participate in the en banc process.  EDIT: I'm incorrect - under the Sixth Circuit's internal operating procedures, Judge Daughtrey would be on the en banc panel because she was on the original three-judge panel. This varies from circuit to circuit.

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