6th Circuit Upholds Gay Marriage Bans, Creates Federal Circuit Split

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Nov 8, 2014

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A landmark opinion from the 6th Circuit sent waves through the legal community this week, setting the stage for a historical ruling from the Supreme Court that could come as soon as June, 2015.  Defying recent trend, the 6th Circuit Panel decided 2 – 1 to uphold gay marriage bans in Kentucky, Michigan, Ohio, and Tennessee.  With challengers to the gay marriage bans promising to appeal to the Supreme Court, it is possible SCOTUS could hear the case next spring and issue a long-anticipated final word on gay marriage by the summer.

6th Circuit Bucks Gay Marriage Trend

Challenges to same-sex marriage bans in Ohio, Tennessee, Kentucky, and Michigan came to the court seeking relief from restrictive marriage laws that prohibited plaintiffs from collecting financial and tax related marriage benefits, adopting children, having same-sex marriages conducted elsewhere recognized in their home state, and otherwise receiving the dignity and respect that marriage carries.  Challengers to the laws claim that gay marriage bans violate the Due Process and Equal Protection Clause of the Fourteenth Amendment by enforcing discriminatory practices based on gender and sexual orientation.

The basis for the challenges and the nature of the plaintiffs closely mirrors the growing number of constitutional lawsuits against gay marriage bans across the country, and, consistent with the wave of support for same-sex marriage that has swept through the federal judiciary, plaintiffs in all four states were successful in lower courts.  In overturning gay marriage bans, federal courts have acknowledged that, although a state generally has the right to pass laws regarding marital status and benefits effecting its citizens, the constitution offers protection to gay couples that same-sex marriage bans cannot infringe upon.

The 6th Circuit, however, was unconvinced that the constitution offered sufficient protection to gay marriage that prevented Ohio, Kentucky, Tennessee, and Michigan from banning the practice.  Deferring to the right of legislators and citizens to set same-sex marriage policy without federal interference, the 6th Circuit concluded that the judicial system was not constitutionally justified in altering state gay marriage laws.

6th Circuit Panel Uses Rational Basis Review

When faced with a constitutional challenge that alleges a state law violated rights promised under the Fourteenth Amendment, federal courts must determine what standard of review to employ.  There are three primary standards of review that courts use depending on the nature of the right allegedly violated and the composition of the class of people allegedly discriminated against: strict scrutiny, intermediate scrutiny, and rational basis.  Strict and intermediate scrutiny reviews both place a high burden on the state government to prove a law is not discriminatory, and are used to protect fundamental rights, racial minorities, and historically discriminated against genders, religions, or ethnic groups.  When a federal court turns to a strict scrutiny review, the state is rarely successful in justifying a law, and intermediate scrutiny only results in a slightly higher state success rate due to similarly high standards.

Rational basis review, on the other hand, affords significant deference to state laws and allows them to remain in effect providing there is evidence of a rational justification for their passage.  The threshold for a state to satisfy rational basis requirements is sufficiently low such that rational reviews of state laws rarely result in a court finding legislation unconstitutional.  True to form, the 6th Circuit’s rational basis review determined that the four challenged states had provided sufficient justification for gay marriage bans.  All four states argued that promoting social stability by limiting marriage to “traditional” unions were the basis for their gay marriage bans, and the 6th Circuit felt that such an explanation was sufficient to protect the law.

In choosing to evaluate under a rational basis review, the 6th Circuit deferred strongly to the state governments, and distanced the federal judiciary from altering state policy.  Writing, “Do the benefits of standing by the traditional definition of marriage make up for [costs to the plaintiffs]? The question demands an answer — but from elected legislators, not life-tenured judges,” the majority opinion argued that gay marriage policy was better settled by state legislators than federal courts.  Consistent with this reasoning, the 6th Circuit upheld the constitutionality of gay marriage bans and provided the first major split in the federal judiciary.

SCOTUS Likely to Weigh in on Gay Marriage Bans

Earlier this year, the Supreme Court declined to take gay marriage cases in large part because the lower federal courts had not split on the issue.  Without a circuit split, SCOTUS did not have a legal question to settle, and was free to pass on the issue.  After this week’s 6th Circuit decision, however, the federal judiciary is not consistent on the question of gay marriage, calling for the Supreme Court to finally take on the issue. 

The losing parties in the 6th Circuit cases have already promised an immediate appeal to the Supreme Court, which means the Justices could hear the issue in the spring of 2015.  Should the matter be fast-tracked to next spring, a historically significant decision on gay marriage will likely come in late June.

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