Amid the din and noise and backslapping going on regarding the recent election, there was another event of importance taking place in a courtroom in Cincinnati, Ohio. There, a three-judge panel of the 6th Circuit Court of Appeals upheld gay marriage bans in four states- Michigan, Ohio, Kentucky and Tennessee. A month after the United States Supreme Court turned down a bevy of SSM cases pending before them, the Sixth Circuit may have forced their hand this time around.
The Court generally will not grant a case unless (1) the issue is of particular constitutional importance or (2) there is a disagreement among different circuits regarding an issue. These issues can be constitutional in nature, or statutory interpretation disagreements. Although some may characterize the Supreme Court as “chicken” for avoiding the issue, it is some of these same voices who accuse our courts and the Supreme Court of being “activist.” In fact, they were following their own internal rules and established protocols in rejecting the original appeals.
And a denial of an appeal from the states banning SSM in denied cases is not an affirmation of the lower court decisions. In this case, there was no controversy to be decided. If they had interjected themselves nevertheless, that would be activism. And while one can make a claim that the lower courts were activist and that the Supreme Court could somehow undo that activism, it would go against tradition, protocol, and Supreme Court rules. Further, you could rail against tradition, protocol and rules but it makes them no less important.
But now the Court is faced with a split between the circuits in a potentially shrewd (in hindsight) move. The cases originally denied review are now blocked from coming back before the Supreme Court. Under rule 44, one can appeal a denial of review, but it must be filed within 25 days of the denial. The rule further states that no extensions are permitted. That window of opportunity has passed. Hence, the respondents in those cases (those representing gay couples) will not get their day in the Supreme Court, although an ultimate decision may negate the lower court decisions in those cases and undo the gains of SSM proponents in those states.
However, there are cases still pending in the lower appeals courts regarding SSM bans that were overturned. Of particular interest is the case of Idaho which is still ripe for appeal and review. If Idaho wants to make a stand for traditional marriage, then that option remains. Ironically, a lot of the issues present in the 6th Circuit cases were also present in the cases denied review. The only difference is that they came to another conclusion, thus the circuit split, thus the possibility of Supreme Court review.
In that decision, authored by Judge Jeffrey Sutton, it argues that the decisions in the other courts presented a series of different rationales for striking down SSM bans. Some argued that marriage was a “fundamental right,” that others were motivated by an unconstitutional animus towards gays, while others claim that gays and gay couples are a suspect class while still more have found no “rational basis” for SSM bans. Looked at another way, there is no constitutional consensus for striking down SSM bans.
If anything, his decision seems to favor a commonsense, incremental way of ushering in gay marriage nationally. Dismissing the so-called animus theory, he states that when a state’s voters enact a gay marriage ban, it is ludicrous to assert that X% of a state’s population is bigoted and voted as they did out of some hatred, misunderstanding, ignorance or prejudice towards gay couples. And that is true. When these bans were enacted by popular referendum, I venture most people voted for tradition, not out of animus, although some surely did. And there is real world examples of this line of thinking. If people are more accepting of gay marriage- and there is ample polling evidence to show they are- then it will be reflected in their laws. In Maine, gay marriage was rejected one year and approved three short years later. One can surmise that other states would follow suit. This is what Sutton is arguing for- the democratic process.
Additionally, there is absolutely nothing stop the LGBT community and their supporters in any state with a gay marriage ban from resorting to the democratic process- something Sutton supports under a theory of federalism- to undo the alleged wrongs of the recent past when SSM bans were enacted. In the Windsor dissent authored by Chief Justice Roberts, he left open the possibility of a federalism argument in future cases- a tactic that may bring in the support of Justice Kennedy.
In any case, this writer would be very much surprised if the case is not taken by the Supreme Court. The Sixth Circuit is dominated by Republican appointees, which is no guarantee that an en banc court would affirm Sutton’s decision. Regardless, the losing parties in this case have already indicated they will bypass that option and appeal directly to the Supreme Court. And en banc review would only delay the case until the October 2015 term. And since it still relatively early in the current term and the docket is not full, there is a very good chance the case would be heard and decided on by June. If so, then those who were railing against the October 6th denials will get what they want- a definitive answer on the question from the Supreme Court. In either case, there will be some unhappy people on one side of the issue.