Divided Sixth Circuit Creates Circuit Split in Same-Sex Marriage Litigation

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Sixth Circuit's opinion today in DeBoer v. Snyder upheld the constitutionality of the same-sex marriage bans in several states, reversing the district court decisions in Kentucky, Michigan, Ohio, and Tennessee.

The majority opinion, authored by Judge Jeffrey Sutton and joined by Judge Deborah Cook begins by invoking judicial restraint and democratic processes:  "This is a case about change—and how best to handle it under the United States Constitution."   Such an opening may not be surprising given Judge Sutton's published views such as this from a Harvard Law Review piece favoring "a return to a world in which the state courts and state legislatures are on the front lines when it comes to rights innovation."

Dissenting, Judge Martha Craig Daughtrey, begins with a scathing assessment of Judge Sutton's opinion:

The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment.

For the majority, the operative precedent is Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question."  The opinion distinguishes Windsor v. United States as limited to the federal government.  The opinion also rejects  the relevance of the Supreme Court's denial of certiorari from circuit decisions finding same-sex marriage bans unconstitutional: "The Court’s certiorari denials tell us nothing about the democracy-versus-litigation path to same-sex marriage, and they tell us nothing about the validity of any of these theories."

The majority also rejects the persuasive value of the opinions from the other circuits, again returning to the judicial restraint perspective:

There are many ways, as these lower court decisions confirm, to look at this question: originalism; rational basis review; animus; fundamental rights; suspect classifications; evolving meaning. The parties in one way or another have invoked them all. Not one of the plaintiffs’ theories, however, makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.

In considering rational basis review (under either equal protection or due process), the majority finds that states can rationally incentivize marriage for heterosexual couples who "run the risk of unintended offspring" and that states might rationally chose to "wait and see" before changing the definition of marriage.

In considering animus (which might heighten the rational basis review to rational basis "plus"), the majority distinguishes both City of Cleburne v. Cleburne Living Center and Romer v. Evans, stating that the state-wide initiatives banning same-sex marriage merely "codified a long-existing, widely held social norm already reflected in state law," rather than being novel acts of animus.  Indeed, the majority states

What the Court recently said about another statewide initiative that people care passionately about applies with equal vigor here: “Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.” Schuette v. Coal. to Defend Affirmative Action[BAMN].

Moreover, in another portion of the opinion the majority addresses the possibility of heightened review under the Equal protection Clause based on level of scrutiny to be applied to sexual minorities and invokes Carolene Products.  For the majority, the issue of political power is the key rationale for denying heightened scrutiny:

The Fourteenth Amendment does not insulate influential, indeed eminently successful, interest groups from a defining attribute of all democratic initiatives—some succeed, some fail—particularly when succeeding more and failing less are in the offing.

And in considering fundamental right to marriage under the Due Process Clause, the majority concluded marriage is not a fundamental right, distinguishing Loving v. Virginia as a case that "addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage."  Moreover, if marriage were a fundamental right, this would call into question laws regarding divorce, polygamy, and age requirements.

The majority also rejects the "right to travel" argument as a rationale for recognizing valid out of state marriages.

Additionally, the majority articulates its constitutional interpretative strategies. In section B, entitled "Original meaning" and in Section G, entitled "Evolving meaning," the majority is very clear that one theory is more consistent with its view of judicial restraint.

The Sixth Circuit - - - as many predicted - - - has now created a split in the circuits on the question of the constitutionality of same-sex marriage bans.  The plaintiffs, who prevailed in the district court cases below, are sure to petition for certiorari to the United States Supreme Court, perhaps bypassing seeking en banc review by the Sixth Circuit.