Equality On TrialSixth Circuit upholds same-sex marriage bans

Sixth Circuit upholds same-sex marriage bans

November 6, 2014

By Scottie Thomaston

LGBT Legal Cases Marriage equality Marriage Equality Trials

UPDATE: Lawyers for the Michigan couple are already drafting a petition for review in the Supreme Court.
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The Sixth Circuit Court of Appeals has upheld same-sex marriaage bans in four states. Judge Sutton wrote the opinion, with Judge Daughtrey dissenting.

From the opinion:

What remains is a debate about whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples. Process and structure matter greatly in American government. Indeed, they may be the most reliable, liberty-assuring guarantees of our system of government, requiring us to take seriously the route the United States Constitution contemplates for making such a fundamental change to such a fundamental social institution.

Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us—just two of us in truth—to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee. What we have authority to decide instead is a legal question: Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?

The decision creates a circuit split: the Sixth Circuit has upheld bans, while the Fourth, Seventh, and Tenth Circuits have struck them down.

EqualityOnTrial will have more on this developing story…

Thanks to Equality Case Files for these filings

Equality news round-up: Kansas hearing postponed,... Equality news round-up: Sixth Circuit fallout,...

34226355 Comments2014-11-06+21%3A28%3A35Scottie+Thomaston

1. Swifty819 | November 6, 2014 at 1:35 pm

OK, now we have to go to SCOTUS
2. RnL2008 | November 6, 2014 at 3:08 pm

I believe we will have a ruling by either June of 2015 or in October of 2015.

This really sucks, especially give ALL of the hints this Appellate court was given!!!
3. CoachBess | November 6, 2014 at 8:51 pm

The National Organization for Marriage (NOM) has followed through on a promise to "actively oppose" the candidate the GOP establishment has branded a "New Generation Republican." The email endorses voting for the incumbent Democrat, Scott Peters, even though he is wrong on important American issues. I am sickened that Republicans would vote for a Democrat and risk our Country's Freedom because of someone's sexual orientation. Can you imagine if we found out how many of these people who think they are of an higher order of another person kick their dogs, beat their wives, cheat on their taxes? For crying out loud we just watched people dress up in the Football Jerseys of one player who knocked out his girlfriend (knocked her out cold) in an elevator; and another group of people wear the football jersey of a player who stuck leaves in his 4 year old baby's mouth, pulled down his pants, and beat him on his testicles with a switch. It is just so sick that someone would actually put Hillary Clinton as a President of our Country over another person because of who they love.
4. Silvershrimp0 | November 6, 2014 at 8:58 pm

I read elsewhere today that a couple of years ago that the 6th surpassed the 9th as the appeals circuit most overturned by the supreme court. Here's hoping that trend continues.
5. ragefirewolf | November 6, 2014 at 1:37 pm

FUCK YOU TOO, SUTTON!
6. Jen_in_MI | November 6, 2014 at 2:18 pm

Releasing this FUCKED UP opinion at the end of the day is beyond cowardly. Hope everyone praying for a circuit split is happy, because I am livid and heartbroken to be one of 32 MILLION PEOPLE left in the dust behind 30+ other states WAITING ON MY FUNDAMENTAL CIVIL RIGHTS! GodDAMN it!!!!!
7. ragefirewolf | November 6, 2014 at 2:24 pm

Exactly why this is NOT EXCELLENT NEWS!

I'm so sorry, Jen. You know I was hoping for good news for you. 🙁

Have I made my point yet, debater7474?!?!
8. hopalongcassidy | November 6, 2014 at 2:30 pm

I know it's damn little consolation, but as much it sucks to lose a battle it's still better than losing the war.
9. josejoram | November 6, 2014 at 4:27 pm

The good news is that the rationale of this decisión insists on relying on the obtuse concept of equalitarian marriage as a "special" sort of marriage and not the widening of the institution. This could succeed 25 years ago but now?
10. LK2013 | November 6, 2014 at 2:36 pm

Sooooo sorry, Jen. Sutton is a sadistic, megalomaniacal SOB. He really should go straight to hell for doing this to MILLIONS of people Every day of delay is too much.

I am livid and heartbroken for you and so many others …
11. andrewofca | November 6, 2014 at 3:42 pm

🙁 So Sorry Jen. For you and for all folks under the 6th circuit. My heart especially goes out to DeBoer & her kids – who had to endure that humiliating fact-finding trial back in Michigan.
12. brandall | November 7, 2014 at 8:39 am

Congratulations, you have scored the highest number of thumbs up ever on EoT for a single comment. You used profanity, viciously singled out a particular person and used all caps. To some members of EoT, you grossly violated basic EoT comment etiquette.

Your four words perfectly represent how I feel.
13. StraightDave | November 7, 2014 at 8:41 am

In this case, substance far outweighed form.
14. ragefirewolf | November 7, 2014 at 9:21 am

Word.

Hahaha!
15. ragefirewolf | November 9, 2014 at 9:35 am

Also, thank you. Lol.
16. jpmassar | November 6, 2014 at 1:38 pm

Some indeterminate number of Supreme Court Justices just swore profanely at certain Sixth Circuit judges.
17. jpmassar | November 6, 2014 at 1:40 pm

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.
http://de.scribd.com/doc/245767271/14-1341-184-6t…
18. MrBaronB | November 6, 2014 at 1:40 pm

Yeeousa! It sounds to me like he's trying to claim that judges don't have the authority to decide what the 14th Amendment says. Good luck with THAT argument….
19. StraightDave | November 6, 2014 at 8:19 pm

But doesn't he say quite explicitly that is what the court's job is?

"What we have authority to decide instead is a legal question: Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?"

And then he proceeds to weasel out of doing it. WTF!?!?!

Shame on me for holding out some shred of hope for Sutton after Posner and after the Oct 6 denials. Somehow, he missed the whole thing.
20. A_JR | November 7, 2014 at 8:45 am

As I read the majority Opinion, the central argument is that the Supreme Court has the authority to decide what the 14th Amendment means but that the lower federal courts–which generally have authority to interpret and apply the 14th Amendment–are, in this case, bound by the Supreme Court's 1972 summary determination in Baker v. Nelson.
(Opinion, pp. 13-14). In 1972, the Supreme Court, according to the majority, issued a one-line order stating that the appeal from Minnesota's statutory ban on same-sex marriages did not raise "a substantial federal question" –presumably meaning the Fourteenth Amendment was not "in play" as regards the validity of state laws prohibiting same-sex marriage–and that that "precedent confronts us." The majority cites to Hicks v. Miranda for the proposition that the lower federal courts remain bound by the high court's 1972 summary ruling. The majority also cited to Hollingsworth v. Perry (2013) for the proposition that the Supreme Court (due to "procedural obstacles") was prevented from considering the "validity of state marriage laws" in that case and at the very time Windsor was being issued. The majority, to me, seems to have a valid legal argument, even if–at the Court of Appeals level–it leads to an outcome that the LGBT community and its supporters sorely dislike.

Consider the dissenter's response found at page 56. The dissent asserts that the 1972 ruling is tantamount to a legal 'dead letter." On what basis does the dissent so conclude, particularly in light of Hollingsworth? First, the dissent does not expressly address Hollingsworth at all at this juncture so far as I can tell. Someone will surely correct me if I've overlooked something. Second, the dissent appears to admit arguing from silence: "…the majority argues that we are bound by the eleven words in the order, despite the Supreme Court SILENCE on the matter in the 42 years since it was issued." (emph. added) Because this issue is very highly charged emotionally, it is difficult to consider the arguments of both sides objectively. Moreover, it is plain that the majority and dissent possess and employ different judicial philosophies as regards case precedent. In my view, the majority on this point has the better reasoned legal position and is more faithful to Supreme Court instructions to the lower federal courts on how much deference is to be afforded previous Supreme Court case decisions. For that reason alone, I believe the 6th Circuit panel correctly decided the case AT ITS LEVEL. The Supreme Court is the only proper place, in my view and understanding of our judicial system, for reconsideration of its 1972 ruling to take place. That review is now likely to occur, given the comments posted here by others that en banc 6th Circuit review reversing the panel's majority is unlikely.
21. StraightDave | November 7, 2014 at 9:10 am

I'll give you the benefit of the doubt of not being a troll. (very tentatively)

The "procedural obstacles" in Hollingsworth were lack of standing by the appellants, plain and simple. It had nothing to do with Baker as precedent.

The 4th, 7th, and 10th circuits could not have issued the rulings they did if Baker still had any force. SCOTUS then let those rulings stand, a clear implication they had no issue with Baker being dead. If SCOUTS let those circuits do what they did, they surely would have allowed the 6th to do exactly the same. At this point, the 6th is swimming against the tide – a tide that SCOTUS has already blessed?

A position that is "more faithful to Supreme Court instructions to the lower federal courts" would be to duplicate the circuit rulings that SCOTUS explicitly endorsed on Oct 6, 2014. The 6th circuit did exactly the opposite, and can expect to be corrected.
22. A_JR | November 7, 2014 at 9:39 am

Agreed as to your observation on the procedural obstacles in Hollingsworth; the only point was that the Court made clear that it was not ruling on the validity of state marriage laws. Would you agree that Windsor didn't rule on the validity of state marriage laws either? I don't believe that Judge Daughtrey, as the 6th Circuit's dissenter, makes such a claim of Windsor but please correct me if I'm wrong.

As to how the 4th, 7th and 10th circuits could issue contrary rulings, the 6th Circuit majority would, I suppose, maintain that those rulings were in error in their disregard Baker. Courts have the power to issue rulings even if they are erroneous. (It's an interesting philosophical question of what we mean when we employ that terminology of "committing error"; ditto, as to when an umpire in baseball, any of the zebras in football or a linesmen or referee in ice hockey is said to have made an "erroneous" call!) Either the 6th Circuit is in error as to applying Baker as controlling precedent or the other circuits that have ruled so far are in error for not applying Baker as controlling precedent. How does one decide? In my view, using your own intellect and neutral-as-possible principles of legal reasoning.

I, however, do disagree with your comments on the significance you attach to the Supreme Court's refusal to grant cert. In refusing to grant cert, SCOTUS does not "bless" lower court decisions and does not "explicitly endorse" them. As a matter of law, the majority (at Opinion p. 16) is, in my understanding of the law, correct that the Supreme Court itself has told us that when it denies cert (which is what happened on October 6, 2014), that choice "imports no expression of opinion upon the merits of the case, as the bar has been told many times." Please feel free to explain the basis in law for your view and I will reconsider what I've just written.
23. RnL2008 | November 7, 2014 at 10:34 am

In my opinion, the 6th Circuit is the court that made the error and they know it……to even rely on Baker as their focal point is seriously ridiculous because they listened to 6 hours of oral argument and NOT once did they ever mention that they would have to decline to hear the appeals using Baker as justification.
24. StraightDave | November 7, 2014 at 10:41 am

Great response, A_JR. I'll try to bridge the remaining gaps.
I agree with you that the validity of state marriage laws was not addressed in Windsor, and that Daughtrey didn't try to claim otherwise. Thus far, this question has not been met head-on by SCOTUS.

I think you're agreeing that the rulings from the 4/7/10th circuits are irreconcilable with the 6th. Who's right? How does one decide? "Right" is in the eye of SCOTUS, and SCOTUS alone. We can have our own opinions and reasoning. SCOTUS will have theirs, using whatever mechanisms they individually choose to employ.

You are correct that we are reminded to not jump to any conclusions re denial of cert. I admit I did it anyway. I have no basis in law for doing so, but everyone tries to read the tea leaves. Clearly, SCOTUS will make some judgement on some basis. I was simply trying to infer what my instincts and logic told me they probably meant, more or less. Upon further review, my phrasing suggested something a bit stronger, but that was just my lazy and imprecise writing. Who knows, they could have a brain cramp between now and then. I didn't mean to imply that I was unambiguously correct, just one opinion among many.
25. Mike_Baltimore | November 7, 2014 at 10:28 am

IF (and that is a very big IF) SCOTUS was of the opinion that 'Baker' was a precedent, then why did it allow several inferior Federal courts rule against marriage bans, and uphold their rulings by denying the request for cert. from various defendants?

If ONLY SCOTUS can rule if 'Baker' is even only tangentially applicable, then the District and Appeals Courts would not have been able to hear the cases, and SCOTUS would have had to rule on the cases, not the requests for cert.

Since you think 'Baker' is precedent, but SCOTUS apparently does not, (in my best Ricky Ricardo voice to Lucy) "You've got a lot of 'splaining to do."
26. ragefirewolf | November 6, 2014 at 1:40 pm

Gotta love how his ruling is a question, not a statement.

Hey, asshole, you really took this long to write such drivel?!
27. debater7474 | November 6, 2014 at 1:41 pm

Excellent news. We now will get a favorable resolution in June 2016, and then the issue will be over before we can get a Republican president to appoint a more conservative court. Bring on the SCOTUS hearing.
28. ragefirewolf | November 6, 2014 at 1:45 pm

I wouldn't call this excellent news.

It's at best possibly good news in the end, but excellent news? Hardly. Now many many couples will have to wait many months before relief!
29. debater7474 | November 6, 2014 at 1:46 pm

The Fifth Circuit was always going to rule against us, so it's better to have a ruling before Ginsburg either dies or retires.
30. ragefirewolf | November 6, 2014 at 1:49 pm

It's still not EXCELLENT news. Read what I said.
31. DACiowan | November 6, 2014 at 1:58 pm

Long term, this is the step we needed for the last, national step and this is the quickest way to get places like Texas or Nebraska on board.

Short term, DAMN IT ALL.
32. ragefirewolf | November 6, 2014 at 2:01 pm

I don't disagree. It's just not something I would slap an "excellent" label on.
33. Rick55845 | November 6, 2014 at 6:31 pm

Not EXCELLENT, I agree. But we have all known that a ruling against us was inevitable, sooner or later. It turns out it is sooner. So while the suffering must continue for LGBT in the 6th, the final show is now on the road. And that's not a bad thing.
34. Jen_in_MI | November 6, 2014 at 2:20 pm

This is a Sixth Circuit ruling, so why talk about the Fifth?
35. hopalongcassidy | November 6, 2014 at 2:35 pm

Because the 5th will rule (much?) later, further delaying the final resolution.
36. RnL2008 | November 6, 2014 at 3:12 pm

I DON'T believe the 5th will get a chance to rule….especially seeing that an appeal to SCOTUS will happen and cert will be granted most likely!!!

And I believe that Justice Sutton can kiss his chances to SCOTUS good-bye!!!
37. Rick55845 | November 6, 2014 at 6:53 pm

Sutton, that limp noodle, may have given us a favor, of sorts.. At least the issue will now be kicked up a notch, ripe for consideration during the current SCOTUS term..

I can't see SCOTUS denying cert on plaintiff's appeal of the 6th's ruling. That would be totally weird, given their denial of cert in appeals of other CA rulings that were in our favor. And if certiorari is granted, I cannot imagine it going against us.

Should a final SCOTUS ruling be against us, I'd be willing to help draft a new Declaration of Independence. I'm 57, dammit. There's nothing I want more than equality, and freedom from religion.
38. RnL2008 | November 6, 2014 at 7:05 pm

I seriously doubt SCOTUS denied cert just to turn around and grant cert in a circuit split and then rule against us……I mean it's possible…just not probable……and I don't see them ruling against us in favor of the 5th, 6th, 8th 11th or the 1st……that would literally split this Country and ONLY our marriages would be affected traveling to other states……..they got the circuit split and at the moment we have a majority of the States and just like in Loving, they are going to overturn the remaining bans!!!

At least that's what I think!!!
39. Mike_Baltimore | November 6, 2014 at 1:58 pm

There should still be time for SCOTUS to accept the anticipated Request for Cert. from one or more plaintiffs in time for a ruling by the end of June 2015.

And SCOTUS controls it's own calendar, so it could insert an argument day if necessary, and still be able to rule before its summer recess. Whether it would add an argument day, if necessary, is another question.
40. ragefirewolf | November 6, 2014 at 2:03 pm

I'm hoping the plaintiffs immediately filed for cert.
41. brooklyn11217 | November 6, 2014 at 2:28 pm

I imagine that they will do so by next week at the latest.
42. F_Young | November 6, 2014 at 2:49 pm

The plaintiffs are already working on the petition to SCOTUS for cert: http://www.lgbtqnation.com/2014/11/michigan-plain…
43. RnL2008 | November 6, 2014 at 3:13 pm

Working on it….hell, one should have already been ready to go!!!
44. montezuma58 | November 6, 2014 at 5:13 pm

I suspect they've had one mostly filled out for a while. They just needed the ruling to fine tune some parts of it.
45. RnL2008 | November 6, 2014 at 5:18 pm

You're probably right……more than likely just needed to know what grounds to file an appeal on.

SCOTUS is NOT real happy with Sutton and Cook at this moment….I mean they did send a message on the 6th of October….the 6th just didn't bother to pay attention to it!!!
46. haydenarwen | November 7, 2014 at 2:39 am

They will appeal right away….. probably won't consider an En Banc as that will delay… a SCOTUS decision is the latest I have as I just got off the phone with a lawyer friend whose is a lead partner in the firm representing MI Couple. I was told that the lead atty had been receiving calls from all over the country
47. debater7474 | November 6, 2014 at 2:03 pm

I meant to say June 2015, my bad.
48. ebohlman | November 6, 2014 at 4:07 pm

As a general rule, if a petition is ready before mid-January and the SCOTUS grants cert, they'll hear and decide the case in the current term. We have plenty of time on this one, whereas a petition from TX or LA wouldn't be ready and though cert would be granted this term, the case wouldn't be heard until next fall.
49. jpmassar | November 6, 2014 at 1:41 pm

Instead, the majority sets up a false premise—that the question before us is “who should decide?”—and leads us through a largely irrelevant discourse on democracy and federalism. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it. Because I reject the majority’s resolution of these questions based on its invocation of
vox populi and its reverence for “proceeding with caution” (otherwise known as the “wait and see” approach), I dissent.
50. mariothinks | November 6, 2014 at 1:41 pm

Woah! I knew it since day one, day of the oral arguments. And wished everyday since then that I would be wrong…UGHHHHH! Screw you Sutton! I hope you never make it to the Supreme Court! Coward and unfair "judge." I haven't read it but I'm sure it's cruel, cold, and distant as can be. Well you know what Sutton! We're people! And deserve the same rights and dignity. And we will get them!
51. micha1976 | November 6, 2014 at 1:42 pm

Daughtrey even quotes the best line from Posner: "Go figure."
52. jpmassar | November 6, 2014 at 1:47 pm

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.
53. DACiowan | November 6, 2014 at 1:50 pm

Now let's get the cert taken in time for a June 2015 ruling.
54. DoctorHeimlich | November 6, 2014 at 1:53 pm

Well, this is certainly aggravating. But the reality is that only a little more than a month ago, nearly all of us thought we were on our way to a June 2015 SCOTUS ruling anyway. Now, we're simply back on that track.
55. Mike_Baltimore | November 6, 2014 at 5:06 pm

The silver lining to this dark cloud is that the issue of ME for ALL states and US jurisdictions (except maybe PR) will be settled without the need for any additional suits, especially from the jurisdictions such as the US VI.
56. redletterday | November 6, 2014 at 1:54 pm

I hope this doesn't affect the resolution of the Kansas case. I can see the state saying basically "there's gonna be a supreme court case now that there's a circuit split, so safest thing is to just stay things indefinitely"

Hopefully the 6th (or the Supreme Court) won't go for that since at the 10th Circuit level this is settled law, and anything else is speculation.
57. davepCA | November 6, 2014 at 2:07 pm

Once we got a circuit split, all remaining pending cases would be likely to be put on hold until the final SCOTUS ruling, and this would be true at whatever point we were at in our progress when the circuit split happened. So yes, of course it's terrible that many couples in the affected states will now have a delay in pending cases that would affect them. But if nothing else, it's really good that we DID get civil marriage for same sex couples implemented in such a large number of cases, especially just recently, prior to this split happening. The delay is awful, but it could have affected far more states and citizens than it now will.
58. redletterday | November 6, 2014 at 2:10 pm

That would really stink because Kansas was literally within a couple days of having the same equality that all the other 10 circuit states have. It would be really arbitrary to do this, but of course it could happen.

More interesting speculation is what happens if the SC takes cert and rules against equality. Presumably many (most? all?) of the states under that recently got equality would try to suddenly re-enforce their bans, although perhaps a few wouldn't. Either way it would be chaos.
59. Dr. Z | November 6, 2014 at 3:02 pm

Technically they would be put on hold if SCOTUS grants cert, not merely due to the circuit split. ME is still binding precedent on Kansas, South Carolina and Montana.
60. RnL2008 | November 6, 2014 at 4:00 pm

I would tend to disagree with ya Dave…..I don't believe SCOTUS is going to put on hold those rulings from the 4th, 7th, 9th and 10th. Those states and rulings have already been basically decided, but I do agree that SCOTUS will grant cert and rule in our favor by 2015!
61. RnL2008 | November 6, 2014 at 3:16 pm

I honestly DON'T believe SCOTUS is going to do ANYTHING with appeals from states in the 4th, 7th, 9th and 10th……..they have already dealt with those appeals…..but hey….it's possible, just not probable
62. DoctorHeimlich | November 6, 2014 at 1:58 pm

Just noticed this interesting and rather brazen passage:

Our task under the Supreme Court’s precedents is to decide whether the law has some conceivable basis, not to gauge how that rationale stacks up against the arguments on the other side. Respect for democratic control over this traditional area of state expertise ensures that “a statewide deliberative process that enable[s] its citizens to discuss and weigh arguments for and against same-sex marriage” can have free and reasonable rein.
Windsor, 133 S. Ct. at 2689.

It seems to me that rather than be swayed by Posner (which he obviously wasn't), he's actually firing back at Posner, and trying to use Kennedy's words in Windsor to do it.
63. Steve84 | November 6, 2014 at 2:02 pm

Anyone who thinks there was any serious "deliberation" about same-sex marriage bans is living in an ivory tower.
64. Fortguy | November 6, 2014 at 3:22 pm

Indeed, the whole point behind the movement over the past decade to create all these state constitutional bans was to forestall any debate for at least another generation.
65. Silvershrimp0 | November 6, 2014 at 3:55 pm

I thought the point was to increase GOP turnout in 2004.
66. Fortguy | November 6, 2014 at 4:10 pm

Although boosting turnout was an immediate side benefit in 2004 for the conservatives, it didn't end there. The Texas ban was sent to voters in Nov. 2005 with no state officeholders on the ballot. Instead, it shared the ballot with a handful of other constitutional amendments regarding relatively innocuous matters like transportation bonds to relocate rail facilities and lines of credit for reverse mortgages. Likewise, the North Carolina ban two years ago wasn't on the November ballot with the politicians seeking election.
67. Jen_in_MI | November 6, 2014 at 2:23 pm

FUCK THAT GUY!!!
68. hopalongcassidy | November 6, 2014 at 2:33 pm

Not even with -your- dildo!

(I hope that isn't offensive, I have a collection of 'em) 🙂
69. jdw_karasu | November 6, 2014 at 4:06 pm

It was rather funny how Sutton was firing out at Posner while Daughtrey uses the word Baskin 12 times, and refers to Posner as "an eminent jurist".
70. micha1976 | November 6, 2014 at 1:59 pm

Daughtrey being generous: "Because the correct result is so obvious, one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split regarding the legality of same-sex marriage that could prompt a grant of certiorari by the Supreme Court and an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens."
71. SeattleRobin | November 6, 2014 at 2:00 pm

Puke.
72. MGinPA | November 6, 2014 at 2:02 pm

It can still go en banc. Whether SCOTUS extends KS and FL stays will tell us a lot. Come summer 2015, we will either have marriage in 17 states or 50 states.
73. MichaelGrabow | November 6, 2014 at 2:08 pm

17?
74. MGinPA | November 6, 2014 at 2:10 pm

If SCOTUS upholds bans, it would revert the rulings in 4th, 7th and 9th.
75. Swifty819 | November 6, 2014 at 2:12 pm

You mean 32. The reverted rulings would not have an ex post facto quality about them.
76. redletterday | November 6, 2014 at 2:14 pm

No, but if the US SC upheld inequality, then any state official could start enforcing the ban in one of those states, which would then go to court — as a new case, mind you -, which would then be upheld because of the new supreme court ruling. So it would take a little extra time, but all of those states would lose their marriage equality within a month or two of a bad Supreme Court ruling.
77. Rik_SD | November 6, 2014 at 2:26 pm

I am really curious how that would work. There would still be an injunction, so the person would have to refuse to perform, then have some kind of action taken against them, then they could file against the injunction after they have standing?
78. redletterday | November 6, 2014 at 2:33 pm

I would guess it would go something like this: the state attorney general in a state like Utah would announce that they are ordering the state to no longer recognize equal marriage as a matter of policy, based on the new Supreme Court ruling. An affected couple would sue, but this time, bound by the new SC precedent, a court would rule in favor of the state. This seems like it would be cut and dry as far as allowing new marriages, but there would still be all kinds of questions about recognizing legal marriage that occurred while they were legal – ex post facto issues and the like.
79. Rik_SD | November 6, 2014 at 2:36 pm

man what a disaster that would be.. I would hope they would not do that to us. That would endanger marriage here in California too, wouldn't it?
80. redletterday | November 6, 2014 at 2:41 pm

It shouldn't. CA's law was overturned and the state chose not to appeal, so it would be safe, as would other states in similar boats like PA and OR.
81. jdw_karasu | November 6, 2014 at 2:40 pm

The laws are still on the books (i.e. a state that hasn't voted away their laws or amendment). If SCOTUS upholds one ban, every state that still has a ban on the books can point to it, point to their own ban, and tell the Circuit to piss off. In turn, the Circuit would be bound by SCOTUS.

That isn't going to happen unless one of our 5 votes drops dead before this is heard. In which case we're screwed given the new Senate.
82. redletterday | November 6, 2014 at 2:45 pm

I think states that chose not to appeal earlier rulings would be OK (basically CA, OR and PA). Although – theoretically – they could be at risk the more I think about it. It would still take a state official to set off a new challenge, which almost certainly would never happen in CA or OR at least.
83. Dr. Z | November 6, 2014 at 3:07 pm

Not in Oregon, unless said official felt like facing an immediate recall campaign just for kicks.
84. jdw_karasu | November 6, 2014 at 3:12 pm

There won't be going backwards in CA unless there were GOP folks at executive levels turning things back. Which would cause a quick amendment to get on the ballot and we would win… big this time. Suspect that OR would be very similar.

In PA, they have massive gerrymandering that favors the GOP. We just won the Gov, but it's a flippy floppy state. There remains the possibility that with a GOP takeover that they might try to enforce the law.

That of course would cause a problem: people would have already gotten married. Which would be a different issue for SCOTUS to take up, similar to issue that the 9th tried to carve out CA from the rest of the 9th: rights taken away.

The problem more likely are all the places like Utah, OK and what not.

This is largely moot. We know how SCOTUS is going to rule. It would be a tragedy if one of Our 5 drops dead before it gets taken up, especially when they had two bites (Perry and then all the cases last month) to deal with the issue but punted.
85. flyerguy77 | November 6, 2014 at 11:35 pm

and AZ…….. I believe SCOTUS won't reverse decisions from 9th, 4th, 10th, and 7th when they hear the 6th CA case.. I have prediction they reverse the decision without hearing the case…
86. Dann3377 | November 6, 2014 at 11:28 pm

Even IF one of "our" judges drops dead before a case is heard we could have a Supreme Court 4-4 split in which case the circuits ruling stands in the case of a tie. Therefore, the 6th circuits ruling would only apply to those 4 states. Also, I wouldn't be to worried about the "New Senate" either. Typically the Senate approves nominees but it may take a few tries. Obama would rather the court be minus a judge than to nominate a conservative. There is no timeline for replacing judges!!!
87. Rik_SD | November 6, 2014 at 2:28 pm

What are our chances with en banc? I'd rather go that route if it's promising and save the circuit split for later
88. jdw_karasu | November 6, 2014 at 2:46 pm

10-5 GOP

Except:

* Helene White is really a Dem with a strange path to the Circuit
+ Daughtrey as a member of the Panel gets a vote

So it's 16 judges rather than 15, and 9-7 GOP.

We would need to swing 2 votes.

That might be tight, and frankly we're better off going to SCOTUS as quickly as possible at this point. Skip the en banc which would just slow things down.
89. micha1976 | November 6, 2014 at 2:50 pm

Wouldnt an en banc hearing vacate the panel opinion? Doesnt that mean that the District Court decisions are back and ME opponents need 9 votes to reverse? Wouldnt 8-8 mean affirmation?
90. wes228 | November 6, 2014 at 2:52 pm

When the en banc is granted it does vacate the panel opinion. The District Court opinions would likely continue to be stayed until an en banc ruling is handed down.
91. micha1976 | November 7, 2014 at 9:16 am

I was referring to jdw's statement that we needed 2 GOP judges (to have a majority in en banc review supposed all Dem judges vote for ME).

My reasoning was that if we get one GOP judge and an 8-8 split, the District Court opinions would be affirmed. So after such an en banc ruling, there would be no room for a further stay, if Latta is any guide.
92. RnL2008 | November 6, 2014 at 3:20 pm

Nothing will change what we currently have which is 32 states working on 35 states if and when Montana, Kansas and South Carolina get their acts together…….but should a stay be granted to those 3 states, even though their Circuit Courts have binding precedent……it means we are looking at 18 states who WILL have to follow SCOTUS ruling and it will be in our favor…….all the 6th did was ensure a ruling this term…in my opinion!!!
93. MrBaronB | November 6, 2014 at 2:02 pm

I think Judge Sutton must have had to hire a BUNCH of extra tap-dancing teachers in order him to pull off such an amazing performance of twisting issues and dancing around reality. Unbelievable….
94. Jen_in_MI | November 6, 2014 at 2:26 pm

It's an unbelievably stupid exercise in justifying bigotry "because…" I can't wait for this sanctimonious asshole Sutton to be thoroughly embarrassed by this asinine ruling by being overturned by SCOTUS post-haste. BIGOT!
95. RnL2008 | November 6, 2014 at 3:22 pm

I totally agree with ya…….this I read like the first 20 pages and this MORON did EVERYTHING he could to give excuses on why they ruled this way…..even though the message from SCOTUS was pretty clear in both Windsor and the denying of cert!!!
96. LK2013 | November 6, 2014 at 2:03 pm

Well, we knew Sutton was a dic% and a coward. Now we know he is an a$$hole and patently cruel. He also seems to be a moron.

Well, I guess that about sums up how I feel.
97. hopalongcassidy | November 6, 2014 at 2:09 pm

I would add "completely obtuse addlepated ragamuffin"
98. Jen_in_MI | November 6, 2014 at 2:27 pm

And I would add "thoroughly worthless piece of shit!"
99. Marekweber | November 6, 2014 at 2:57 pm

Let's just call him a Republican.
100. davepCA | November 6, 2014 at 3:14 pm

Don't hold back, you guys. How do you really feel about him? : )
101. Retired_Lawyer | November 6, 2014 at 2:03 pm

With four cases dealt with in Judge Sutton's opinion, there is the option of one or some plaintiffs seeking a writ of certiorari, while another or others ask the 6th Circuit for the case to be reheard en banc. The lawyers for the plaintiffs can have their cake and eat it too. Regardless, it seems difficult to imagine the Supreme Court being able to duck the marriage equality issues now. I will take an educated guess that cert will be sought by at least one party almost at once, so the case can be heard and decided this term.
102. hopalongcassidy | November 6, 2014 at 2:12 pm

Are the four considered to be "consolidated" for all judicial purposes?…if so, would it create more problems (delays or otherwise) if they are divided between those 2 options? It seems that could become a bit of a mess…
103. Retired_Lawyer | November 6, 2014 at 2:45 pm

The cases were considered together by the same panel, but they were never consolidated.
104. hopalongcassidy | November 6, 2014 at 3:14 pm

Okay, I was uninformed…thank you.
105. BenG1980 | November 6, 2014 at 2:04 pm

"Since 2003, nineteen States and the District of Columbia have expanded the definition of marriage to include gay couples…. On top of that, four federal circuit courts of appeals have compelled several other States to permit same-sex marriages under the Fourteenth Amendment."

Sutton contorts reality to minimize the fact that 32 states plus DC now have full marriage equality.
106. SeattleRobin | November 6, 2014 at 2:09 pm

That was the first thing that jumped out at me. I figured, oh guess the opinion was written a while back and not updated after all. But then he goes on to discuss the denials of cert. VERY disingenuous to list only 19 states!
107. Steve84 | November 6, 2014 at 3:39 pm

They clearly wrote this long ago.
108. BenG1980 | November 6, 2014 at 6:24 pm

No, because he casually mentions "several other States" with federal circuit court rulings. If it weren't so serious, it'd be funny.
109. guitaristbl | November 6, 2014 at 2:05 pm

Finally ! Sutton decided to be an asshole..Good for him ! Now let's go to SCOTUS finally. Sutton decided to be the judge overturned. Whatever rocks his boat I guess.

To SCOTUS and fast please !
110. ragefirewolf | November 6, 2014 at 6:16 pm

Floats. Floats his boat.

Floating = good
Rocking = bad

Don't rock the boat!

Sorry, I was feeling pedantic.
111. AstrophelAgony | November 6, 2014 at 2:10 pm

On this apparently somber occasion, I'd like to preemptively offer a warm congratulations to the loving couples living in Texas, North Dakota, South Dakota, Nebraska, Louisiana, Mississippi, Alabama, Georgia, Florida, Arkansas, Montana, Tennessee, Ohio, Kentucky and Michigan who will now find themselves married much quicker than they had thought. 🙂
112. SeattleRobin | November 6, 2014 at 2:15 pm

I'd bet money Jen in Michigan is not feeling warm and fuzzy right now.
113. AstrophelAgony | November 6, 2014 at 2:19 pm

I don't doubt it for a second. I'm only hoping the warm fuzzies will increase exponentially when she gets to share them all at once with the rest of the country this summer.
114. hopalongcassidy | November 6, 2014 at 2:20 pm

I must be on stupid watch, I don't get what you mean there…?
115. AstrophelAgony | November 6, 2014 at 2:24 pm

Presuming the Supreme Court takes this split-causing case as I think they're expected to, they will issue a ruling sooner than had there been no circuit splits at all this term. Of course, I am also assuming it will be the ruling we are all hoping for.
116. hopalongcassidy | November 6, 2014 at 2:32 pm

Ah, okay thanks…I couldn't seem to grasp the significance of that particular list of states…now I see. glurk
117. AstrophelAgony | November 6, 2014 at 2:38 pm

No problem at all. Seeing red does have the effect of blurring your vision momentarily.
118. RnL2008 | November 6, 2014 at 3:27 pm

I agree with ya……a little longer wait will make it all the sweeter because SCOTUS will grant cert to one or all of these cases and they will rule in favor of Marriage Equality……it's the ONLY way they can go after deny cert to the previous cases…….they gave ALL the hints possible to Sutton and the 6th…….and the 6th FLAT out told SCOTUS to go FRUCK themselves……..and don't think for a minute SCOTUS won't be returning this favor to the 6th for a very long time!!!
119. Mike_Baltimore | November 6, 2014 at 5:29 pm

Hasn't it been stated here that the new most overturned Court of Appeals is the 6th? Good to see them trying to keep up their record of most overturned.
120. Jen_in_MI | November 6, 2014 at 2:29 pm

I was already married in MI on 3/22/2014 after the ban was struck down. I've been with my partner for 17 years. I am goddamned TIRED OF WAITING!
121. AstrophelAgony | November 6, 2014 at 2:37 pm

And I can't pretend to know how unbearable that must feel. I was never in support of an early circuit-split myself, but now that we have one, the one positive is that marriage equality will come to everyone sooner than otherwise expected.

But maybe this isn't the time for consolations for those who've been dealt yet another inhumane delay of justice. I'm so sorry. :/
122. MrBaronB | November 6, 2014 at 6:09 pm

I hear ya'. I'm in Michigan, too. My husband and I married in Rochester, NY two years ago after being together 18-1/2 years. We're at nearly 21 years now and *still* waiting to be fully recognized by our own government. Sucks, but at least we're moving forward. 🙂
123. MGinPA | November 6, 2014 at 2:12 pm

How sweet would it be if SCOTUS summarily reverses without even holding arguments.
124. hopalongcassidy | November 6, 2014 at 2:22 pm

Yeah, no shit…but that's about as likely as me getting elected President of Surinam.
125. flyerguy77 | November 6, 2014 at 2:44 pm

it could happen.. maybe they want to do that way if a circuit goes in a different way which SCOTUS will REVERSE THEM in a heartbeat
126. worldcup26 | November 7, 2014 at 4:00 am

It could NEVER happen.
127. davepCA | November 6, 2014 at 3:19 pm

I would prefer it if the Supreme Court reverses but DOES hold arguments and issues a lengthy, comprehensive, and thoroughly detailed ruling that makes it as clear as possible why they are reversing and why the bans are unconstitutional. All caps, bold, and italicized would be good.
128. hopalongcassidy | November 7, 2014 at 5:27 am

That would be icing on the cake but really wouldn't make a particle of difference…a reversal would be the end of the war no matter how much verbiage came along with it.
129. ragefirewolf | November 7, 2014 at 5:32 am

I disagree. How exactly SCOTUS establishes nationwide equality will absolutely affect later litigation and as a side effect, even social acceptance. I believe what we want is a strong statement for LGBT equality in the grandest general perspective as judicial restraint will allow, especially considering the EEOC is now using federal sex discrimination protections in lawsuits on our behalf.
130. JayJonson | November 7, 2014 at 5:49 am

Yes. The downside of our hope that the Circuits would do SCOTUS's job by all ruling the same was that there would be no comprehensive ruling binding every circuit. Now there likely will be. I have no doubt that the five Justices in the Windsor majority will do the right thing, again with the decision written by Kennedy. The RATS no doubt will sign onto at least two dissents, one written by Scalia, the other by Roberts.
131. guitaristbl | November 6, 2014 at 2:12 pm

"This is a case about change—and how best to handle it under
the United States Constitution. From the vantage point of 2014, it would now seem, the question
is not whether American law will allow gay couples to marry; it is when and how that will
happen. That would not have seemed likely as recently as a dozen years ago. "

Oh you are right Sutton. Ironically with this decision you have actually answered the question of when I think.
132. MrBaronB | November 6, 2014 at 6:26 pm

Right. I can still hear my 8th grade Civics teacher telling us, "the whole reason we have a constitution is to limit the tyranny of a panicking or prejudiced majority on a helpless minority. And the last line of defense for all our rights is our judicial branch."

Apparently Sutton needs to sit down and have a chat with Mrs. Chesborough. She could set him straight.
133. franklinsewell | November 6, 2014 at 2:14 pm

He notes the lower courts' decisions from Louisiana and Puerto Rico.
134. guitaristbl | November 6, 2014 at 2:20 pm

Of course he does, that's all he has anyway.
135. franklinsewell | November 6, 2014 at 2:20 pm

Oh, and brings up plural marriage, to boot.
136. jdw_karasu | November 6, 2014 at 2:23 pm

I think we might know the reason for the delay: Daughtey's dissent is blistering and likely took some time to craft after reading Sutton's nonsense.

Also surprised Sutton went this route. Obviously where he was leaning in the hearing, but the denial of certs pretty clearly told him that SCOTUS would strike him down.
137. RnL2008 | November 6, 2014 at 5:19 pm

And they will…..and in my opinion hell will freeze over before Sutton gets nominated to SCOTUS!!!
138. wkrick | November 6, 2014 at 2:24 pm

Sutton is just building up his conservative resume for the day when the next republican president nominates him to the Supreme Court.
139. Jaesun100 | November 6, 2014 at 2:44 pm

Yeah at the expense of thousands of gay couples waiting for Marriage benefits.
140. Retired_Lawyer | November 6, 2014 at 2:49 pm

The next Republican president might be George P. Bush (son of Jeb) if he can beat Chelsea Clinton. Judge Sutton will be too old for promotion.
141. jdw_karasu | November 6, 2014 at 2:49 pm

He'll be too old come 2017. The GOP doesn't appoint them that old.
142. StraightDave | November 6, 2014 at 8:48 pm

I think he's well past his sell-by date now. Gone completely rotten.
143. hopalongcassidy | November 6, 2014 at 2:26 pm

Watch for an EMERGENCY REQUEST from Brian Brown to his neanderthal supporters "We are WINNING, we just need some more MONEY to keep fighting!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!"
144. Jen_in_MI | November 6, 2014 at 2:31 pm

I am so angry and disappointed in this idiotic and yes, PATHETIC ruling. THIS is what passes for scholarship? My flipping G*D! Spare me the ignorance and logical contortions of obvious bigots.
145. franklinsewell | November 6, 2014 at 3:01 pm

Jen_in_MI: The folks here have been waiting to hear from you, and I'm sure are sorry for the real-world effect this decision has on your family.
146. guitaristbl | November 6, 2014 at 2:33 pm

"Loving addressed, and rightly corrected, an
unconstitutional eligibility requirement for marriage; it did not create a new definition of
marriage."

It takes a special kind of stupid doesn't it ? So if marriage till loving was the union of one man and woman of the same race in those states that had this law, then HOW LOVING DID NOT "CREATE" A NEW DEFINITION OF MARRIAGE ?
Sutton really needs to dance around the issue and ignore basic rationality honestly.

He even dares to mention Matthew Shepard in this travesty of a decision. Don't ever dare again to speak this name with your filthy mouth Sutton, you do not deserve the honour to even speak or write that name, especially in such an opinion.
147. SeattleRobin | November 6, 2014 at 2:34 pm

Now that I've read more of the decision:

I CANNOT effing believe that Sutton actually is actually swallowing the responsible procreation and proceeding with caution bullpoop. He's obviously an intelligent man and I don't know how he wrote any of that and signed his name to it.

The federalism and originist crap was expected. But I am astounded at his rational basis garbage.

I'm back to my original, inelegant response: puke.
148. FredDorner | November 6, 2014 at 9:08 pm

I have a theory that Sutton lobbed a softball at SCOTUS in order to avoid a ruling based on heightened scrutiny.
149. SWB1987 | November 6, 2014 at 2:39 pm

I'm happy in an ironic way . I want SCOTUS to rule on it this term
150. Jaesun100 | November 6, 2014 at 2:55 pm

I do too before the court shifts balance but only if we get a favorable ruling …..
151. flyerguy77 | November 6, 2014 at 2:39 pm

i Guess 6TH Circuit of Appeals want their hands to be smacked by SCOTUS.. I just read that they didn't count the new states where they allow same-sex marriages after Oct 6th's decision by SCOTUS or they didn't get the message by SCOTUS,.. See you' all at SCOTUS hopefully by spring.. If they decides go to SCOTUS directly, and SCOTUS denies stays in KS/ South Carolina it will speaks loud and clear.
152. MGinPA | November 6, 2014 at 2:46 pm

I am cautious about our chances but yes if KS is not stayed by SCOTUS it would be a de facto reversal of the 6th.
153. ebohlman | November 6, 2014 at 4:50 pm

I'm not sure you could read much into that. It's very unlikely that there wlll even be a petition submitted by Wednesday, much less one scheduled for conference. The legal background of the KS case will be no different than it was on Tuesday.

Declining a stay after a petition from the 6th has been filed would be suggestive. Declining a stay after a petition has been granted cert would be all but determinative (though I assume that if cert was granted, all other courts would stay their proceedings sua sponte).
154. RnL2008 | November 6, 2014 at 3:51 pm

I honestly DON'T believe SCOTUS will grant a stay in ANY case that is governed by the 4th, 7th, 9th or 10th because those states have already been dealt with by denying cert on October 6th.

My problem with this ruling from the 6th is that Sutton TOTALLY ignored the hints by SCOTUS and the fact that they know Baker vs Nelson DOESN'T bind them….and the fact that the 6th is forcing SCOTUS to take up this issue when it was clear to EVERY other living breathing person what SCOTUS wanted……for shame on Sutton and Cook to IGNORE every legitimate reason and come up with total BS to justify their ruling!!!
155. SteveThomas1 | November 6, 2014 at 5:26 pm

The 9th Circuit ruling came down a day after the denial of cert for the other three circuits, so there has been no denial of cert in a 9th Circuit case.
156. SWB1987 | November 6, 2014 at 2:43 pm

When is the next possible time they would take this up?
157. franklinsewell | November 6, 2014 at 3:00 pm

If the request for writ of certiorari and the various required briefings make it by January, the Supremes can take up the issues this term.
158. Zack12 | November 6, 2014 at 4:01 pm

We have more then enough time for that.
159. LK2013 | November 6, 2014 at 2:43 pm

I don't think Sutton is an intelligent man. I think he is stupidly blinded by bigotry and ambition.
160. hopalongcassidy | November 6, 2014 at 3:16 pm

There are different manifestations of intelligence; history is replete with "intelligent" misanthropic pricks.
161. ebohlman | November 6, 2014 at 4:56 pm

Intelligence doesn't lead to increased rationality; it just leads to truthier rationalizations..
162. guitaristbl | November 6, 2014 at 2:46 pm

"Not long from now, if current trends continue,
American society may define marriage in terms of affirming mutual love, a vision under which
the failure to add loving gay couples seems unfair. Today’s society has begun to move past the
first picture of marriage, but it has not yet developed a consensus on the second. "

What..? I mean…what ? And who says that society has not moved past what YOU choose to define as marriage Sutton ? You and Cook ? On what standard or evidence does this last sentence stand on ??

"If, before a new consensus has emerged on a social issue, federal judges may decide
when the time is ripe to recognize a new constitutional right, surely the people should receive
some deference in deciding when the time is ripe to move from one picture of marriage to
another"

Courts are not here to decide based on public opinion Sutton. When the court is presented with a QUESTION it has to answer on constitutional grounds, not grounds of popularity !
What an opportunistic scum…

"Freed of federal-court intervention, thirty-one States would continue to define
marriage the old-fashioned way. Lawrence, by contrast, dealt with a situation in which just
thirteen States continued to prohibit sodomy, and even then most of those laws had fallen into
desuetude, rarely being enforced at all. On this record, what right do we have to say that societal
values, as opposed to judicial values, have evolved toward agreement in favor of same-sex
marriage?"

So what, the number of states CREATES the right Sutton ? So if you did not have to decide on the bans of all the four states in the circuit but ONE of them you would have ruled the other way, that's what you are saying us ?
Gosh you so did not want to write this opinion (or maybe you did who knows) that you have written the WORST, least judicially sensible anti-equality opinion out of 2 district court ones and two dissents in CAs.
163. JayJonson | November 6, 2014 at 2:48 pm

The majority opinion here is disgraceful. It amounts to Sutton's submission of a resume for the first Supreme Court appointment by the next Republican President. (I wonder if he was encouraged by the Republican takeover of the U.S. Senate on Tuesday.)

I found it interesting how Sutton went out of his way to slap Breyer and Kennedy by reference to foreign law and his absurd reliance on Baker. His failure to even mention the children of gay couples is not likely to impress Justice Kennedy.

Re the discussion above, this is not an "excellent" development in any sense, but I cannot see how SCOTUS will be able to ignore it, and in that sense it will surely lead to the Court granting cert sooner rather than later. That will likely mean that the Fifth Circuit will not proceed with the Texas and Louisiana cases, and that is a good thing.

I expect a SCOTUS ruling on June 29, 2014 establishing that the right to marry must be extended to same-sex couples.

The dissent in this case is eloquent and compelling.
164. montezuma58 | November 6, 2014 at 6:30 pm

A ruling on June 29, 2014 would be one of the coolest things ever. 😀
165. Ryan K (a.k.a. KELL) | November 8, 2014 at 6:37 am

Judge Daughtrey's dissent was as spot on and gifted as those written by Ginsberg. We need more women like this in our judiciary.
166. guitaristbl | November 6, 2014 at 2:51 pm

"Yes, we cannot deny thinking the plaintiffs deserve
better—earned victories through initiatives and legislation and the greater acceptance that comes
with them. But maybe the American people too deserve better—not just in the sense of having a
say through representatives in the legislature rather than through representatives in the courts, but
also in the sense of having to come face to face with the issue. Rights need not be
countermajoritarian to count."

Oh please tell us now that you do that for the plaintiffs..! How about you go on the streets, knocking doors so that people can approve of your marriage before you have it Sutton ? Gay people and same sex couples are not beggars, to beg for anyone's acceptance of their civil rights, they are american citizens !

"Isn’t the goal to create a culture in which a majority of citizens dignify and respect the
rights of minority groups through majoritarian laws rather than through decisions issued by a
majority of Supreme Court Justices? It is dangerous and demeaning to the citizenry to assume
that we, and only we, can fairly understand the arguments for and against gay marriage. "

NO SUTTON, the history of this nation does not say that neither does the constitution ! The rights of a minority are NOT to be decided by a majority ! How come you apply such a rationale here but only a few pages above say that Loving rightly decided these laws are unconstitutional ? How can you claim any credibility here with what you write ?!
167. LK2013 | November 6, 2014 at 2:55 pm

From Daughtrey's wonderful dissent (really, the only part of the BS decision worth reading):

Despite the majority’s insistence that, as life-tenured judges, we should step aside and let the voters determine the future of the state constitutional provisions at issue here, those nine federal and state courts have seen no acceptable reason to do so. In addition, another 16 states have been or soon will be added to the list, by virtue of the Supreme Court’s denial of
certiorari review in Kitchen, Bostick, and Baskin, and the Court’s order dissolving the stay in
Latta .The result has been the issuance of hundreds—perhaps thousands—of marriage licenses in the wake of those orders. Moreover, the 35 states that are now positioned to recognize same-sex marriage are comparable to the 34 states that permitted interracial marriage when the Supreme Court decided Loving. If the majority in this case is waiting for a tipping point, it seems to have arrived. The second contention is that we should “wait and see” what the fallout is in the states where same-sex marriage is now legal. The majority points primarily to Massachusetts, where same-sex couples have had the benefit of marriage for “only” ten years—not enough time, the majority insists, to know what the effect on society will be. But in the absence of hard evidence that the sky has actually fallen in, the “states as laboratories of democracy” metaphor and its pitch for restraint has little or no resonance in the fast-changing scene with regard to same-sex marriage. Yet, whenever the expansion of a constitutional right is proposed, “proceed with caution” seems to be the universal mantra of the opponents. The same argument was made by the State of Virginia in Loving.
168. franklinsewell | November 6, 2014 at 2:58 pm

Judge Daughtrey's dissent quotes Berzon's argument about discrimination based on sex, at length.
169. Silvershrimp0 | November 6, 2014 at 2:59 pm

Shameful. As A TN resident with friends who are married, I was really hoping for this to go the other way so that they could have their relationship recognized immediately. The silver lining is that there's still time for the Supreme Court to take the issue up during the current term.
170. Retired_Lawyer | November 6, 2014 at 3:00 pm

Just reading the news that Deboer v. Snyder, the Michigan case, will be taken to the Supreme Court ASAP: good! That was the only case that featured a trial of the facts, and was decided by a Senior Judge, Bernard A. Friedman, appointed by St. Ronald of Cali. The plaintiffs, nurses who adopted special needs kids, were and are especially commendable.
171. jdw_karasu | November 6, 2014 at 3:55 pm

Daughtrey spent a lot of time talking about DeBoer. Laying out the facts of the case, it read like:

"Dead Judge Kennedy: please read this section and have your heart melt."

Then walking through Friedman's findings, she wrote like:

"PS: Don't forget this is one of your GOP judges. He nailed it all perfectly."
172. brooklyn11217 | November 6, 2014 at 4:51 pm

You obviously made a typo: DEAR Judge Kennedy….please don't wish ill upon him, even unintentionally! 😉
173. Ryan K (a.k.a. KELL) | November 8, 2014 at 6:53 am

edit Edit EDIT that post!!!
174. SeattleRobin | November 8, 2014 at 7:12 am

You can't edit once someone has replied.
175. RQO | November 6, 2014 at 8:42 pm

Yes, the Michigan case and trial (and opinion) has remained my favorite all along., and once again we can now be thankful Judge Friedman delayed the case to get it ramped up for ME as well as adoption, and then some more for a full trial with evidentiary record. I dare Scalia to try and do anything with Regnerus' rot.
176. SWB1987 | November 6, 2014 at 3:01 pm

Are these going to be good cases to go before SCOTUS? Who are our possible lawyers?
177. guitaristbl | November 6, 2014 at 3:06 pm

Every lawyer will rally behind any case SCOTUS takes. Michigan plaintiffs are already saying they will appeal. Their case seems the most likely imo since its the most complete and has gone through an actual trial on district level.
178. jdw_karasu | November 6, 2014 at 3:52 pm

The Michigan case is an excellent one to take to SCOTUS. Full trial, with a GOP judge writing a thoughtful, fact & law based opinion. As GBL says, the cases will have plenty of support heading up.
179. ebohlman | November 6, 2014 at 5:34 pm

Additionally, it's the only one of the 6th Circuit cases that covers both celebration and recognition. I would hope that neither of the OH cases nor the TN case would be petitioned, since they're recognition-only cases (and TN is just a preliminary injunction); they can ask for en banc if they want to. The KY celebration and recognition cases are formally separate. Probably the worst outcome at this point would be the SCOTUS deciding to take up recognition and punting on celebration.
180. Retired_Lawyer | November 6, 2014 at 4:15 pm

Robert Barnes of the Washington Post quotes a staff attorney at the ACLU's LGBT Project as saying that his organization will help get Deboer v. Snyder to the Supreme Court; Barnes goes on to quote the Michigan AG that the Court should take the case quickly.
181. haydenarwen | November 7, 2014 at 3:01 am

Ken Mogill, Dana Nessell, and Carole Staynar all argued in the trial and represent the MI Couple. I am friends with their legal partner Jon Posner
182. guitaristbl | November 6, 2014 at 3:03 pm

"When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way. "

Oh how moving…And then gay couples will walk hand in hand with the Tennessee legislature and christian pastors towards the sunset while credits roll…You see this is with the republicans : they present utopic realities they believe people believe in. See for example Shelby : "We strike down because there is no racism to the states under the act anymore people live happily ever after". Now "we do not strike bans down because christian bigots will meet and discuss kindly with gay people, have a nice civilized, loving debate and all will realize how good gay couples are and vote to grant them their rights".
People like Sutton are dangerous : They ignore social reality and historic facts about this country. Sutton would have uphelp interracial marriage bans in the 60s obviously. After all those couples of different races could be "heroes in their own stories" by begging others for their rights in a "civil discourse" of course, right Sutton ? That's why for example the interracial ban in Alabama was repealed in the 2000s and with less than 60 % of support, right Sutton ?

Live in the REAL world these couples live for a while. For now GO FUCK yourself.

This is the worst written opinion I have read on the ME issue for sure.
183. davepCA | November 6, 2014 at 3:35 pm

Indeed.
Sutton, spare us the "Kum Ba Yah" rhetoric. It is painting an extremely unrealistically rosy picture of society to the extent that it ignores the fact that lots of people are more than willing to have their personal prejudices given force in law when given half a chance to do so. As a taxpayer, I really would have preferred a RULING ON THE MERITS OF THE QUESTION BEFORE THE COURT, rather than baseless excuses for why the court shouldn't have to do so. It's your JOB, Sutton. And you failed to do it.
184. SeattleRobin | November 7, 2014 at 12:02 am

That was what bothered me most about Sutton during the oral arguments. I got the impression that he honestly believes that most people are on the fence or close to leaping over it, and that nationwide ME is only five or so years away if left entirely to the democratic process.

His ignorance of the depth and level of entrenchment of bigotry and religious antipathy towards gay people in many parts of the country is mind boggling. His opinion is correct for some states, but a state like Tennessee could still be holding tightly to a marriage ban thirty years from now.
185. Zack12 | November 7, 2014 at 12:27 am

Indeed, in AL and MS, polls there showed disapproval of interracials couples at about 55% in 2000.
And yet Sutton thinks these folks will allow marriage equality.
186. JayJonson | November 7, 2014 at 5:59 am

I think you give him too much credit for sincerity. I believe just the opposite. He, and Roberts as well, know how to put a smile on their bigotry. They appear less threatening and angry than Scalia, but they reach the same conclusions.

He sees his opinion as a bid to establish his credentials for a SCOTUS appointment.

He doesn't care whether ME is ever achieved nationwide, but he is happy to attempt to stop it because whether successful or not the attempt will burnish his credentials with the Republican base who are eager to get another "states' rights" voice on SCOTUS.
187. ragefirewolf | November 7, 2014 at 6:01 am

I'm with Circuit Judge Daughtrey on wondering whether this was a genuine ruling against marriage equality or rather a clandestine effort to get the cases to SCOTUS on our behalf. I guess we'll never know.
188. Zack12 | November 6, 2014 at 4:42 pm

Sutton must have read the dissent of Chester Straub in the Windsor case when it went before the 2nd circuit.
He more or less spouted the same crap in this option.
189. ebohlman | November 6, 2014 at 5:46 pm

I'd have a very limited amount of sympathy for his position if all the bans in question were statutory rather than constitutional. But they aren't, and the sole reason they were made constitutional rather than purely statutory was to prevent the process that he's so fond of from working the way he thinks it should.
190. MrBaronB | November 6, 2014 at 7:05 pm

Yep! And the whole reason we have a judiciary, is because the founding fathers knew full well that they couldn't trust the idiots that make up the voting public to protect the civil rights of other people. And they were right. But Sutton apparently doesn't know any of that.
191. RQO | November 6, 2014 at 8:45 pm

Once again reminded of the old Southern "joke" ; "Sure my family is good to the colored folk. Why every Thanksgiving we invite them into the dining room and show them a picture of a turkey."
192. wes228 | November 7, 2014 at 6:19 am

Except that these bans do not allow gay people to "become the heroes of their own stories." Their stories are written for them. The government cannot "control their destiny" as the Supreme Court wrote in Lawrence v. Texas.
193. yyyAllenyyy | November 6, 2014 at 3:04 pm

Based on the make-up of the 6th, how would we fare if en banc was granted?
194. jdw_karasu | November 6, 2014 at 3:50 pm

As mentioned above:

9-7 GOP
– White is a Dem who Bush re-nominated as a compromise
– Daughtrey (Sr. Judge) will be on the en banc since she was on the Panel

We would need to flip 2 GOP judges. Sutton wrote in such a way to be wishy washy enough to probably hold. Daughtrey also didn't play nice in a way to that you would think was determined to convince 2 GOP judges. As mentioned below, the cites to Posner (Baskin), Friedman (DeBoer) and Kennedy (Windsor) seemed more aimed at Kennedy than the 10th.

This is the opposite of what would have happened if we won. 9-7 GOP, with Sutton on our side would have left 8 GOP judges… even running that table would have left a "tie" which goes to the Panel.

Anyway… why would we bother with en banc? Our side doesn't want to delay this, and instead would take it straight to SCOTUS.
195. David_Midvale_UT | November 6, 2014 at 6:31 pm

The needs of LGBTQ families are better served going directly to SCOTUS.
196. guitaristbl | November 6, 2014 at 3:09 pm

"In the main, the majority treats both the issues and the litigants here as mere abstractions.
Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win “the hearts and minds” of Michigan, Ohio, Kentucky, and Tennessee voters to their cause. But these plaintiffs are not political zealots trying to push reform on their fellow citizens; they are committed same-sex couples, many of them heading up de facto families, who want to achieve equal status—de jure status, if you will—with their married neighbors, friends, and coworkers, to be accepted as contributing members of their social and religious communities, and to be welcomed as fully legitimate parents at their children’s schools. They seek to do this by virtue of exercising a civil right that most of us take for granted—the right to marry."

Just started reading the dissent but I already love you judge Daughtrey and the way you treat with contempt these two judges.
197. ebohlman | November 6, 2014 at 5:55 pm

She's harkening back to Friedman's remark that the state of Michigan had lost sight of the fact that the case was about people.
198. A_JR | November 7, 2014 at 8:15 am

"Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry …" writes guitaristbl. Two observations:

1) Did not the majority expressly recognize the "costs" and "harms" imposed on homosexuals of state laws that prevent homosexuals from marrying persons of the same sex? See, Opinion at pp. 23, 24. Would not what is meant by "In the main" seem to be largely a matter of subjective impression?

2) Is not the quoted wording imprecise? That is, homosexuals are not denied the right to marry but are denied the right to marry someone of the same sex. The same rule applies to males as well as to females, correct?
199. guitaristbl | November 7, 2014 at 8:58 am

First of all I did not write anything, I quoted what judge Daughtrey wrote in her dissent,you should have read it.

1) I do not understand your question but yes the majority recognized the harms, something that makes their decision even more immoral and void of constitutional value.

2) The couples are not trying to create a new right to same sex marriage but apply the existing right of marriage SCOTUS has recognized many times in the past. Obviously when the plaintiffs are couples, when the opinion and dissent refer to their right to marry, it means to each other, not a 3rd entity.
200. A_JR | November 7, 2014 at 12:58 pm

1) Instead of "write," I should have used "typed"! My apologies for being less than fully precise. Plainly, Judge Daughtry did not make the input to this blogsite. Am I incorrect in thinking that you embraced her comment as your own?

2) As another post of mine elsewhere at this blogsite evidences, I had, in fact, read her dissent and I had the same reaction when I read that statement as part of her dissent. it was an unfair comment by her and my reaction was that she was hanging an awful lot on her prefatory phrase "in the main."
3) That a law causes emotional pain to someone does not automatically render it immoral or void of constitutional value. For example, a law prohibiting a masochistic person from cutting off his digits or extremities (or a law prohibiting two consensual sado-masochists from cutting off the digits or extremities of each other) may deprive that person or those persons of his/their own type of emotional/psychic enjoyment but few would posit that such a law would be immoral or void of constitutional value. But that was not Judge Daugherty's comment. The essence of her comment was that the majority did not recognize the plaintiffs as persons who were suffering on account of the legal prohibitions on same-sex marriage. That comment of hers remains untrue and unfair. It is why another person posting here (jdw_karasu) criticized her for being too extreme in her rhetoric and thus less likely for this case to win en banc consideration before the 6th Circuit.
3) I am only able to understand your point #2 as a semantic issue. You write/type: "The couples are not trying to create a new right to same sex marriage …" Really?
Then over what is this litigation? Under the constitutions of the four states in the 6th federal circuit, there is no "right" to same-sex marriage. The litigation seeks to create a new legal right in those states to same-sex marriage, correct?
201. guitaristbl | November 7, 2014 at 1:50 pm

I don't know what you are doing on this forum but you must be new or else you would now the basic legal backgrounds of marriage equality.
Obviously you are someone against marriage equality, this forum is pro equality I should inform you.
No plaintiffs are not basing their arguments on emotions and sentiments but pure constitutional policies of equal protection under the 14th amendment on a civil right such as marriage which has been recognized as such by the Supreme Court numerous times before (Loving, Zablocki, Griswold etc).
No Daughtrey is not unfair in any way or untrue. I would advise you to read better but given that you are probably against equality it wouldn't make a difference so here is what Daughtrey said : These couples are not and should not be political activists begging a majority to grant them their civil rights. They are everyday people, law abiding tax paying American citizens who raise families and ask for the same right many people take for granted : to get married. The majority did not recognize that. While on the surface it seemed to realize the harms inflicted upon them it failed to address and remedy that harm as they have the authority and ,yes, the obligation to do. Instead they essentially put them out, letting them spend their whole lives begging to be granted their rights, essentially be political activists. These couples should not be forced to be that when a clear constitutional injury (denial of the equal protection of the laws) is inflicted upon them.
As for your final shameful and uninformed assumption the answer is a resounding NO. These states ban same sex marriage unconstitutionally. It's not the couple trying to invent a new right through litigation, it's the states who limited fundumental liberties by proposing these amendments.
The Supreme Court has recognized the right to marry on cases before, an expanded right : in Loving SCOTUS recognized a right to marry, not a right to marry someone of another race. In Zablocki SCOTUS recognized the right to marry, not a right for an inmate to marry. In Griswold SCOTUS once again affirmed the right to marry, not the right to marry someone while using contraception.
The litigation seeks to recognize an existing constitutional right that has Ben unconstitutionally denied to the plaintiffs.
202. DrPatrick1 | November 7, 2014 at 3:25 pm

"The couples are not trying to create a new right to same sex marriage …" Really?

UMMMM, are you purposefully obtuse? I mean, is this a genetic ignorance, or simply learned behavior?

The right is question is not of "same-sex marriage" but simply of marriage. JUST AS in loving, the right was not "interracial marriage" but simply marriage. The "semantic" difference is one of utmost importance.

THUS, the right being sought is merely the application of the existing right (as recognized by a majority of federal courts, in now a majority of US states) to marriage equally applied regardless of the gender of the participants. One's gender does NOT in any way impact the role one plays in a marriage, does not have any legal restraints as to how marriage is applied, and should not be a qualification for seeking a marriage. It is not some new right with unclear boundries and rules to which the word marriage is being used. It is simply the recognition that marriage as is applied to 2 persons of different gender applies equally to 2 persons of the same gender!

You must know this, and are purposefully being antagonistic. Your ignorance is not welcome here. Please return to the other slugs and crawl back under the rock from whence you come!

(To all others, please forgive me. I have no patience for this drivel today!)
203. F_Young | November 7, 2014 at 9:05 am

a_jr: "2) Is not the quoted wording imprecise? That is, homosexuals are not denied the right to marry but are denied the right to marry someone of the same sex. The same rule applies to males as well as to females, correct?"

By that logic, laws against interracial marriage did not cause any harm and were not discriminatory since both African-Americans and whites could still marry, just not the people they wanted to marry. Loving v Virginia threw out that sophistry last century.
204. A_JR | November 7, 2014 at 1:07 pm

Not at all, F_Young. If you go back and read Loving v. Virginia (388 U.S. 1 (1967)),
you'll see that interracial marriage between African-Americans and other races (except Caucasian) including "Orientals" (the Court's own term) was permitted, not prohibited.
See, footnote 11 of that Opinion. Thus, the Court wrote: "The fact that Virginia prohibits only interracial marriages involving white person demonstrates that racial classifications must stand on their own justification as measures designed to maintain White Supremacy." (388 U.S. at 11) So, the statute was, in fact, racially discriminatory and no basis could be given for preferring to protect "white racial" integrity but not the "racial integrity" of other races. In the case of laws restricting marriage to its traditional meaning–something that by traditional definition over the millennia and across the globe applies only to couples of different sex–neither females nor males are subject to unequal treatment, unlike as in Loving. Therefore, I respectfully submit that your analogy and/or appeal to Loving breaks down.
205. guitaristbl | November 7, 2014 at 1:58 pm

What bunch of legalistic nonsense is that ? Even if your poorly constructed argument somehow held any water marriage equality litigition provides an answer to that as well : denial of the right to marry is discrimination on the basis of sex. I d advise you to reach judge Berzon's concurrence in Latta, you may learn something but in a few words john and ken cannot marry because ken isn't Jenny. Thus we have discrimination on the basis of sex, where intermediate scrutiny applies.
Oh and drop this whole "traditional" meaning nonsense. Nothing is traditional about the one man-one woman concept of marriage, it is a recently adopted concept in the western world (this determination is needed since a vast amount of people today live in countries with different definitions of marriage – definitions that do not include same sex marriage, mainly polygamy).
Gosh I so wish Sutton has written some of the things you claim here as well. His opinion is bad enough from a constitutional point of view anyway, but such arguments, especially the ones about loving, would make such an obvious bad impression to the SCOTUS justices.
Thankfully your drivel has been used by all the anti equality attorneys in court till now and failed almost entirely everywhere.
206. wes228 | November 7, 2014 at 9:09 am

In Christian Legal Society v. Martinez, the Supreme Court said flat out that in the eyes of the law, there can be no distinction between homosexuality as status and homosexuality as conduct.

Therefore, a ban on the *act* of marrying someone of the same sex is a ban on gay *people* from ever getting married. "A tax on wearing yarmulkes in a tax on Jews" (Bray v. Alexandria Women's Health Clinic).

That right there rebuts the nonsense of "gay people have the same equal right to marry someone of the opposite sex."
207. franklinsewell | November 6, 2014 at 3:15 pm

Judge Daughtrey's dissent quotes Berzon's argument about discrimination based on sex, at length.
208. jdw_karasu | November 6, 2014 at 3:15 pm

One of the ironies of the opinion and dissent is how much Daughtrey cites Posner (Baskin), Friedman (DeBoer) and Kennedy (Windsor). Three GOP judges.

She's not writing for *us*. She's writing for Kennedy, specifically the long well written and powerful passage on children.
209. Jean Ihenry | November 6, 2014 at 3:20 pm

Is it possible that the SC could remand and order reconsideration in light of United States v. Windsor?
210. jdw_karasu | November 6, 2014 at 3:23 pm

"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." -Judge Daughtrey

It's hard to tell if she's more pissed off at Sutton hanging his hat on it, or for SCOTUS for being asshats to make it clear that Baker is dead.
211. guitaristbl | November 6, 2014 at 3:29 pm

Daughtrey is furious and it shows. She is slamming in every sense. And to answer your question on your comment above, it's not just Daughtrey writting for Kennedy, it's Sutton himself writing for Kennedy.
The whole opportunism and lack of spine that characterizes this decision (in the spirit of "look we would overturn if it was only a few states like in Lawrence but its too many to do so now") is repulsive and its not likely to appeal to Kennedy. It's a sluggish opinion of pure political opportunism, which fails to address the main issues and is so full of inconsistencies (Loving was good because interracial couples where discriminated against and the definition of marriage was not changed but these cases are bad because these bad gays want to 'redefine" marriage but I do it to dignify them by turning them into civil rights beggars) and hints that its not a constitutional analysis at its core but an evaluation of where public opinion stands and accordingly a decision is made.
212. jdw_karasu | November 6, 2014 at 3:44 pm

Sutton isn't really writing for Kennedy. He knows it's a lost cause. The cert denials were proof enough of that. There's nothing in his opinion that will play to Kennedy.

There are some pieces the Roberts or Alito might grab onto for their dissent, or perhaps Thomas. It's likely that Tony will be far more intense and batshit.
213. JayJonson | November 6, 2014 at 5:07 pm

He is writing for an appointment to the Supreme Court. He knows this will be reversed, but he wants to be remembered as the true conservative who failed to buckle.
214. guitaristbl | November 6, 2014 at 6:04 pm

The ACA decision will always haunt him. This one may re instate him a bit to the eyes of republicans but they did not forget ACA imo, as much as to nominate him for SCOTUS. I will be immensly satisfied if he is never nominated.
215. ebohlman | November 6, 2014 at 6:09 pm

If so, he's delusional; I can't imagine the next Republican president nominating anyone over 45 years old.
216. guitaristbl | November 6, 2014 at 6:03 pm

I did not say he is intentionally writing for Kennedy or that his writing is to convince Kennedy to rule against ME ,quite the opposite. Probably unintentionally he wrote an opinion a judge as analytical and careful as Kennedy will find too messed up and inconsistent.
217. ebohlman | November 6, 2014 at 6:01 pm

Yay for "stake through its heart". I've always thought that every culture seems to have its own version of undead creatures, and precedential summary dismissals like Baker seem to be American jurisprudential culture's version.

In a context requiring less decorum, though, I'd have written "a golden spork up its ass."
218. Jaesun100 | November 6, 2014 at 3:29 pm

Is there any way possible the Supreme Court punt on this ?
219. guitaristbl | November 6, 2014 at 3:32 pm

Of course not, there is a CLEAR circuit split now which needs to be remedied as soon as possible.
220. Steve84 | November 6, 2014 at 3:34 pm

It's customary for them to resolve circuit splits. But they don't *have* to do anything.
221. ragefirewolf | November 7, 2014 at 2:25 am

Thank you, Steve. THAT is what worries me when everyone else is so gung ho.
222. MGinPA | November 6, 2014 at 3:35 pm

They could put the case on hold and wait for the 5th, 11th, 8th and 1st to issue their rulings.
223. Jaesun100 | November 6, 2014 at 3:44 pm

Let's hope nothing is put on hold
224. Zack12 | November 6, 2014 at 3:51 pm

They could but they have their split. It's pointless to wait for the other circuits at this point.
225. jdw_karasu | November 6, 2014 at 3:45 pm

They can't punt it. They may slow walk it.
226. JayJonson | November 6, 2014 at 4:18 pm

I don't think they will slow walk it. Kennedy and Ginsburg are quite aware of their legacies and their mortality. The results of the election this week will no doubt powerfully remind them that a Republican President is a real possibility in two years. Should something happen to either of them, the Court will not decide the issue until after 2017, when it is quite possible that Sutton will be the leading candidate for a SCOTUS vacancy. I cannot think that either Kennedy or Ginsburg will be happy with that possibility.
227. F_Young | November 6, 2014 at 4:56 pm

At this point, it could be advantageous to us for SCOTUS to hold onto the cert petition long enough for Montana, Kansas and South Carolina to overturn their bans and stays, and perhaps even for the 11th circuit to overturn its bans, hopefully without a stay. Otherwise, marriages in those states could be delayed till at least June 2015.

Mind you, Scalia and his cronies might foresee this and grant cert ASAP precisely to avoid this scenario.

The petition grant could be delayed as late as early January without precluding a June 2015 nationwide decision. On the other hand, granting cert in December would not accelerate a nationwide decision at all.
228. A_JR | November 7, 2014 at 8:51 am

Yes, the Supreme Court can deny cert without giving any reasons and permit the split among the Circuits to persist. This has happened in other situations.
229. Ryan K (a.k.a. KELL) | November 8, 2014 at 7:17 am

Only four votes to grant cert. this will be one in the second conference the petition is presented, if not the first. Done deal.
230. Rik_SD | November 6, 2014 at 3:36 pm

wow loved the dissent
231. Jaesun100 | November 6, 2014 at 3:43 pm

Wasn't released until after the election god forbid you give the dems reason to turn out and vote ….
232. guitaristbl | November 6, 2014 at 3:47 pm

You just have to love how Daughtrey slams historical facts about racial and gender equality and what role the judiciary played to achieve those back in the days. Facts Sutton omitted on purpose of course and showed more of his, baseless constitutionally, political opportunism. Her dissent is a big, satisfying outburst of scientific, historic and legal facts all summed up in this great writting. It stands in such strong contrast to Sutton's silly inconsistency and the utopic society it describes, it deserves some serious consideration from Kennedy and the rest of the SCOTUS. It basically humiliates Sutton and his silent coworker, Cook, in the most satisfying way : By treating them and their baseless spins to some cold hard truths.

The only thing that worries me is if officials in KS, SC and MT or even in other states that have been affected by the denial of cert on October 6th and the 9th circ decision the next day can use this decision to delay or spin things.
233. jdw_karasu | November 6, 2014 at 4:14 pm

Those states were always going to appeal given how blockheaded they are. They also always were going to get turned down. SCOTUS can take up DeBoer while not staying / denying the appeals from the 4th, 9th and 10th.
234. ebohlman | November 6, 2014 at 6:33 pm

The De Boer plaintiffs just need to wait 21 days before filing their petition so there will be no actual legal developments that can be used as excuses for stays of either proceedings or injunctions in the three precedent states. Nobody other than the De Boer plaintiffs should be filing for cert because none of the other cases deal with both celebration and recognition; they can request en banc from the 6th if they so desire.

There's no way to stop the judges in MT and SC from reading Sutton, but they can also read Daughtrey.
235. guitaristbl | November 6, 2014 at 6:42 pm

Well judges in MT and SC are still supposedly still bound by precedent in their respective circuits but you never know now I guess…
236. Ryan K (a.k.a. KELL) | November 8, 2014 at 7:18 am

Not supposely, they are.
237. Jaesun100 | November 6, 2014 at 3:48 pm

If the Supremes must get a case at least this is not a 3-0 ruling like the remaining circuits most likely would have been…..
238. jdw_karasu | November 6, 2014 at 4:16 pm

We'll win the 11th, at worst via en banc.
239. Zack12 | November 6, 2014 at 3:50 pm

After reading the one ruling yesterday about the prisoner with the enlarged prostate that Sutton wrote, I knew he would rule against us.
What a cruel and vile man.
240. guitaristbl | November 6, 2014 at 3:59 pm

"Today, my colleagues seem to have fallen prey to the misguided notion that the intent of
the framers of the United States Constitution can be effectuated only by cleaving to the
legislative will and ignoring and demonizing an independent judiciary. Of course, the framers
presciently recognized that two of the three co-equal branches of government were representative in nature and necessarily would be guided by self-interest and the pull of popular opinion. To restrain those natural, human impulses, the framers crafted Article III to ensure that rights, liberties, and duties need not be held hostage by popular whims.
\
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.” See 28 U.S.C. § 453. If we in the judiciary do not have theauthority, 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."

I felt a bit emotional by that last paragraph. Daughtrey must consider this dissent one of the most important of her judicial career, I believe that's what this shows. I am not sure if her majority opinion would have that much passion, as it has as a dissent. So yes, thank you Sutton for giving her the chance to write such a strong opinion that puts you to shame not only due to the facts it presents but because it essentially says in these last two paragraphs that you have violated the judicial oath you took with this decision. She puts you to shame as a judge (with the facts slamming) and as a person with no integrity with these last two paragraphs. I hope he reads it carefully and learns something.
241. David_Midvale_UT | November 6, 2014 at 6:26 pm

>> I hope he reads it carefully and learns something.

Unlikely.
242. Zack12 | November 6, 2014 at 4:03 pm

Asking an en banc review of a circuit dominated by Republicans is stupid, our side is doing the right thing by going straight to SCOTUS.
243. Ryan K (a.k.a. KELL) | November 8, 2014 at 7:24 am

Absolutely agree; and only delays the inevitable – a ruling by the SCOTUS. It was only a matter of time before either the 6CA, 5CA, or 8CA voted to uphold a ban. We have our vehicle for a comprehensive ruling by the SCTOUS based on a ruling in a trial case by a GOP jurist and with proper standing with a Governor and AG as defendants. This is the proper vehicle to go to SCTOUS and will be the same-sex equality case equivalent of Loving for interracial marriage.
244. flyerguy77 | November 6, 2014 at 4:05 pm

I have a bold prediction to make regarding SCOTUS. I have a feeling they will reverse the decision without hearing the case. Or reverse 6th Circuit only and they will give the HINT to circuits. I think other cases should Go forward.
245. franklinsewell | November 6, 2014 at 5:23 pm

Can the Supreme Court reverse an appellate decision without hearing a case?
246. flyerguy77 | November 6, 2014 at 5:27 pm

yes they can…they can ask for briefs and etc….
247. franklinsewell | November 6, 2014 at 5:42 pm

They can reverse, but a writ for certiorari still needs to be filed and briefing would occur before they issued a summary disposition on the merits.
248. Retired_Lawyer | November 6, 2014 at 4:23 pm

Let us hope that April DeBoer and Jayne Rowse have the opportunity to meet Edith Windsor, and join her in the pages of our community's history of successful Supreme Court cases.
249. brooklyn11217 | November 6, 2014 at 4:45 pm

Agreed. I met Edie last week, at a small political fundraiser. She is great!!
250. montezuma58 | November 6, 2014 at 4:28 pm

I've glanced over parts of the ruling. Sutton harps on Baker a bunch. Even if he's correct that it is still in effect he seems to completely ignore that summary dismissals apply only to the exact question at hand. At the very least, Baker is completely silent on recognition of marriages performed in other states and thus irrelevant to that issue.

According to Sutton any half assed rationalization no matter how tenuously plausible is enough to pass rational basis review.

Also he seems to think fundamental rights are very narrowly defined and only apply to those who by the good graces of the government have been allowed to exercise them in the past. Fundamental rights are broad and belong to everyone. Due process analysis requires the government to justify restrictions on fundamental rights. It is not a game of finding nit picky technicalities in definitions to carve out exceptions. My 10 year old son has a fundamental right to marry. We don't allow him to marry for reasons other than there's never been a tradition of allowing 10 year olds to marry.

He dismisses Loving and other precedents that recognize marriage as a fundamental right by attempting to claim those decisions never would have been made at the time if the plaintiffs had been same sex couples. I guess this goes back to some originalism tripe he espoused. Under the tenets of originalism guessing how people who've been dead for decades would view issues they likely couldn't have imagined carries more weight than precedent which is traceable to actual constitutional principles.
251. mariothinks | November 6, 2014 at 4:52 pm

I'm glad Judge Daughtrey called Sutton and Cook out on their hypocrisy. His rationale for using rational review is ridiculous, at best. He does it by comparing it to cases where it occurs in worst ways. Isn't that indicative of something, Sutton? That those laws are fallacious as well. And so you want to add on to that list? Give me a break. The opinion was a debacle since the beginning. He doesn't even have a legitimate defense for using rational review. Anything that's "plausible." I'll tell you what's plausible, you're a cold pseudo-intellectual judge who writes bigoted opinions.
252. guitaristbl | November 6, 2014 at 5:17 pm

Sutton made a ruling based on assumptions (I do not think the country has moved past the "traditional" definition of marriage so it must be right), lies (19 states have ME – it's 32 right now after the denial of cert he himself writes about) and a shameful for a judge logic of "creating a federal constitutional right when a minority of states do not recognize it per loving or lawrence". This is cowardice and downright wrong since neither Loving nor Lawrence created any new right, they affirmed an existing one, previous societal animus and lack of knowledge could not realize. He mocks the judicial system in its face by implying that if he 3 states in the circuit had ME and one didn't he might think of stricking down the ban per loving or lawrence. I would have respected him more as a bigot if he took Feldman's bigoted approach. He would again be historically and constitutionally wrong but at least he would have decided based on a supposedly constitutional analysis, what judges are called to do. Instead he tries to sugarcoat his bigotry with inconsistencies and a purposedly delusional and utopic view of society – a society that solves civil differences based on rationality and discussion. The issue of marriage has been far from such a treatment in the public space and he knows it, that's why he feels so confident : he knows that his utopic jibber jabber will never find resonance in a state like Tennessee. He mocks same sex couples in their face by realizing and recognizing the vast harm done to them and their children by the bans but he fails to address if that harm needs constitutional remedy – he simply says these couples should be beggars of public acceptance for as long as it takes till the merciful majority kindly grants them the rights without which he, a judge with responsibility to remedy unequal treatment (and he recognizes there is unequal treatment) recognizes that immense harm is created to the children – the same entitities he says these bans rational proclaim to protect in a louzy, unconvincing way.
Sutton never goes to great lengths to address constitutional issues here. He goes to great lengths to show us that he is not bigoted towards same sex couples using supposedly merciful (but in all honesty crude and ironic) rhetoric towards them and then pass the ball to legislatures and the public. And Daughtrey calls him and Cook out on that especially at her last two paragraphs. She questions the very essence of his judicial integrity since he caves in to public will and tyranny and not address the constitution as a judge should.
She humiliates him with facts he has been unable to avoid without showing the vast gaps in his poorly written opinion. He has written the worst out of five anti-equality writings in this round of litigition for sure (The louisiana and puerto rico cases in federal district court, the dissents in the 10th and the 4th and the decision of the state judge in Tennessee).
253. mariothinks | November 6, 2014 at 5:54 pm

Yeah, I couldn't have said it better myself. And he leaves out, what Daughtrey ridicules him in pointing out, that out of those 19 states a good sum of them have ME by courts! The guy totally looked over that. Such blind suppositions.
254. RnL2008 | November 6, 2014 at 5:24 pm

This is why we NEED to correct folks especially Judges like Sutton that it's NOT a new right or to redefine marriage….it's to simply be INCLUDED into an already EXISTING right……..why is it that according to Sutton and other idiots that I have the FUNDAMENTAL right to marry ANY man, even if I don't know him WITHOUT question, but that RIGHT apparently is questioned when the person I particularly choose is a woman I have been with for almost 8 years?

It is EITHER a fundamental right to marry or it ISN'T and fruck this supposed traditional marriage crap!!!
255. David_Midvale_UT | November 6, 2014 at 6:20 pm

These idiots fail to recognize that slavery was a long-established (and Bible-thumping-supported) tradition. . . that treating women as the property of their husbands was a long-established tradition. Sad to say, but some people will use any irrational thought that crosses their mind to justify what is essentially government-sanctioned bigotry.
256. RnL2008 | November 6, 2014 at 6:42 pm

I would agree with ya……I mean reading Sutton's ruling(If ya want to call it that) ignored EVERYTHING just because he didn't want to write this…..how sad to rule using Baker as something it hasn't been in a few years!!!
257. palerobber | November 7, 2014 at 8:10 am

i agree, but Sutton doesn't even think there's a general "right to marry"…

p. 28
"But the right to marry in general […] particular, nowhere appear in the Constitution"
258. Waxr | November 6, 2014 at 5:31 pm

Reading Judge Sutton's opinion, I couldn't believe the following argument is still being used:

"What we are left with is this: 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. That does not convict the States of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring. That explanation, still relevant today, suffices to allow the States to retain authority over an issue they have regulated from the beginning."

There is so much more to marriage than children. When it was brought up in the Supreme Court, it was laughed at. The ability or desire to have children has never been a requirement for marriage. People in their old age remain married. A few months ago a 95 year old man was allowed to marry a 94 year old woman.

Plus it also ignores that fact that gays and lesbians can and do have children. Many of the same-sex marriages in question have children. As Justice Kennedy asked: What about the children in same-sex families?
259. guitaristbl | November 6, 2014 at 5:50 pm

But Sutton realizes that same sex couples raise children and actually admits they do it well, that's the insanity here. That's why I say he makes a two page, poor constitutional analysis. The rest of the 40 pages are sugarcoating and dancing around.
Oh and you don't even need to go to elderly couples. Give Sutton a copy of Griswold, he obviously forgot this one. He made references to Zablocki, Loving etc for example but conveniently left out Griswold, because it would undermine the exact passage you quoted and one of the very few that had some hint of constitutional analysis under rational basis.

Again this is such a bad ruling, it actually helps equality a lot as we go to SCOTUS, especially compared to a dissent full of scientific, judicial and historical facts.
260. Waxr | November 6, 2014 at 9:19 pm

Sutton page 24:
"In addition to depriving them of this status, it deprives them of benefits that range from the profound (the right to visit someone in a hospital as a spouse or parent) to the mundane (the right to file joint tax returns). These harms affect not only gay couples but also their children. Do the benefits of standing by the traditional definition of marriage make up for these costs? The question demands an answer—but from elected legislators, not life-tenured judges. "

Since when is the welfare of children not a concern of the courts?
Sutton slaps those children in the face.
261. MrBaronB | November 7, 2014 at 3:41 am

And since when is it not the job of the courts to right constitutional wrongs when the legislature and/or the voters are ignoring it??
262. josejoram | November 7, 2014 at 3:33 pm

It's simply cinical.
263. RnL2008 | November 6, 2014 at 6:45 pm

I noticed that Sutton DIDN'T explain how denying Gays and Lesbians the right to marry would somehow make opposite-sex couple more procreative responsible…wonder why? Even Judge Walker asked that question of Charles Cooper….and all Cooper could do was say he didn't know!!!
264. guitaristbl | November 6, 2014 at 5:40 pm

I posted it above but I feel the need to point out again now that I have read the whole opinion and dissent as the main point that exposes Sutton's inability to stick to historical and judicial facts and his obvious lack of constitutional spine :

""Isn’t the goal to create a culture in which a majority of citizens dignify and respect the
rights of minority groups through majoritarian laws rather than through decisions issued by a
majority of Supreme Court Justices? It is dangerous and demeaning to the citizenry to assume that we, and only we, can fairly understand the arguments for and against gay marriage. "

Simply, no it is not.Even if we assume that the goal of our society is to create a culture where everyone's rights are respected by the majority, a judges job is not to evaluate whether that happens. He is there to make constitutional determinations. And as the opinion in Kitchen from the 10th I think pointed out, judges cannot duck constitutional questions when they are presented to them in order not to upset possibly a majority of citizens and their decisions. This view is not only consistent with judicial ethics but with historic facts as well. The supreme court in Loving certainly would love for citizens to be able to create a culture which dignified interracial couples (those sutton considers inexplicably as covered under the constitution in contrast with the the plaintiffs here) and it would love for the states to have repealed sodomy laws with public consensus but it was not there to decide the popularity of those laws and whether society was ready to proceed without them, but to decide their CONSTITUTIONALITY of these bans. Daughtrey blasts that in her first paragraph by saying she rejects the majority's " invocation of vox populi and its reverence for “proceeding with caution”".
With his 2nd sentence though Sutton enters directly into Daughtrey's lion den though. He arrogantly implies that the courts who decided loving or brown or lawrence (decisions he somehow defends on very unconvincing grounds) were doing something dangerous and demeaning against citizens. History has proved him wrong and Daughtrey points that out with her historic references to the racial equality battle and the sex equality battle. Furthermore, he himself admits he does not know why the public voted for these bans. Furthermore he had in his hands a case, DeBoer v. Snyder, where certainly more facts where presented during the trial on same sex marriage and its beneficial role to society than in any other case and certainly in a way a vast majority of voters did not have access to or cares about.He blissfully and opportunistically rejects the social reality we all know : the majority of people who voted for these bans did so not on rational grounds but purely RELIGIOUS grounds. He knows its true, statistics exist to prove it but fails to address it because his case would fall into shambles. He chooses to reject those facts (only for Daughtrey to go on and present them in an analytical way to come and bite him from behind).
If we go past the vast scientific layout which was available right in his hands (and while he, himself recognizes that same sex couples are no less commited or any less good parents than opposite sex couples – thus indirectly accepting the facts presented during the trial at DeBoer), he then only has to address the constitutional issue. But is it dangerous to the citizenry when a judge does better than them what he is there to do ? Address laws under the prism of the constitution ? Of course he is supposed to know better on constitutional matters than citizens who are often driven by personal animus and bigotry. Of course he is supposed to provide constitutional remedy when the citizenry fails to address the constitution through the constitution. That's his role in the judiciary. Daughtrey shoots him down in a very personal and direct way here in her last 2 paragraphs : "Of course, the framers presciently recognized that two of the three co-equal branches of government were representative in nature and necessarily would be guided by self-interest and the pull of popular opinion. To
restrain those natural, human impulses, the framers crafted Article III to ensure that rights,
liberties, and duties need not be held hostage by popular whims […] 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."
She basically directly challenges his judicial integrity, he tells him and Cook that they failed to do their jobs, they failed to uphold their oath as judges.Their opinion was more "activistic" as one would call it than any pro-equality opinion opponents claim to be simply because it failed to make direct constitutional determinations, but rather relied on guesses, utopic assumptions and predictions of public will, something a court is nout and should not be in position to make.
265. BillinNO | November 6, 2014 at 5:56 pm

God- I'm reeling. I really didn't expect this. Im glad I punted until December on a follow up article to one I wrote last fall for a magazine here. Forgive my language, please- but what a Fuc%ed up week. So is it like a given the 5th and the 7th will pile on to give the impression of a divided nation? Dammit this makes me mad. Mad as hell.
266. BenG1980 | November 6, 2014 at 6:01 pm

Hopefully SCOTUS will grant cert before the 5th can rule, and there aren't any federal cases yet the 8th that have been decided. (The 7th already ruled in favor of marriage equality.)
267. BillinNO | November 6, 2014 at 6:04 pm

Sorry I meant the 8th.
268. guitaristbl | November 6, 2014 at 6:11 pm

No reason to wait. 4 judges now exist to grant cert imo most certainly. Having such a poorly written opinion on circuit level, boosts our cause as well..!
269. F_Young | November 6, 2014 at 6:25 pm

guitaristbl: "No reason to wait."

It would be advantageous for us for the SCOTUS to hold on to cert petitions until marriages start in Montana, Kansas and South Carolina at least, and ideally in the 11th circuit. Otherwise, marriages in those states will be delayed until June 2015 despite our wins in the 4th, 9th and 10th circuits.

There is no advantage to us for a cert grant before early January, which is time enough for a nationwide SCOTUS decision in June 2015.

Unfortunately, Scalia and his ilk may see this and thus grant cert ASAP to delay as many marriages as possible until June 2015.
270. guitaristbl | November 6, 2014 at 6:40 pm

Till the petition is filled proceedings will have ended in MT, KS and SC I believe. It remains to be seen if SCOTUS will now grant stays to those states based on the new landscape after the 6th's decision. The states will of course quote whole passages from the 6th's decision here and try to make it work in their advantage.

Anyway as long as this split exists, nothing is certain and the inconsistency only hurts people.
271. David_Midvale_UT | November 6, 2014 at 6:12 pm

If states were allowed to ignore the federal Constitution by putting some issue to a public vote, we would still have black children educated in unheated dirt-floored schools and signs on drinking fountains that say "Whites Only" in some parts of the country. I hope some group of religionist hypocrites put stripping the constitutional rights of Sutton, Cook, their family members, and their closest friends up for a popular vote. . . But which right would be most effective to teach them that constitutional rights cannot be abridged by the voice of the people? Let’s start with the Eighth Amendment protection from cruel or unusual punishment.
272. RnL2008 | November 6, 2014 at 6:52 pm

Don't think that some folks WOULDN'T love to add to those signs Gays and Lesbians enter through the back, ride in the back of the bus and drink at this fountain so forth and so on……all of the anti-gay bigots would love to continue to make us 2nd class citizens……hell, even the defendants in Kansas stated that they don't see why Gay and Lesbian couples couldn't be okay with common law marital status……,,,I mean the State sees it as a legal marriage….HOWEVER the federal government does not…..these folks just hate us and so do some of the justices, because hey…..they are just human after all…..Grrrrrr!!!
273. Rick55845 | November 6, 2014 at 6:21 pm

Well, this ruling by the 6th is disappointing, but we knew at least one circuit would rule against us. Most of us hoped it would not be the 6th, and most felt it would more likely be the 5th or the 8th. Either of those might now be more emboldened to rule against us now, unless plaintiff's appeal to SCOTUS quickly enough to put a stop to proceedings in the other circuits.

It's not ideal for LGBT who live in the states that are within the 6th CA, and not ideal for any of us, truth to tell. It's not good to lose your marital status simply by crossing a state line. But a decision against us was bound to happen sooner or later. It happens that it was sooner. So we need to make the most of it. Appeals to SCOTUS need to be filed forthwith. Perhaps we can get the whole issue resolved by the end of June this year.

If it isn't resolved in our favor when the question comes before SCOTUS, then the matter of forming a more perfect union may yet again be on the table.
274. LawyerAK | November 6, 2014 at 6:41 pm

I have a question for others who may be following this more closely than I. As I remember, the Michigan case involved the adoption of hard to place children by a couple of nurses. I also recall that there was a good factual record in the Michigan case. Isn't this the perfect set of facts to take before Justice Kennedy? Unless I'm missing something, having this be the case that goes up seems like a gift. I'd be interested in others' thoughts.
275. guitaristbl | November 6, 2014 at 6:51 pm

Indeed the Michigan case is the perfect one to go before SCOTUS out of the 6 (two from Kentucky, two from Ohio and one from Tennessee plus the one from Michigan) since it went under a very detailed trial with a lot of facts displayed and also includes both questions (recognition of out of state marriages and issuance of licenses). The rest of the cases either miss something or have some problems to a bigger or smaller degree. The Michigan case is the most straightforward and plaintiffs already announced their intention to appeal to SCOTUS.
276. LawyerAK | November 6, 2014 at 7:06 pm

Thank you guitaristbl
277. ebohlman | November 6, 2014 at 7:12 pm

You're correct on the details.

If there were any serious questions about Kennedy's position, this would definitely be a better case than De Leon (TX) or Robicheaux (LA). And I was thinking in the last few days that there was a small but non-trivial possibility that if it was decided favorably the SCOTUS might grant cert on MI's appeal, simply because this was the only post-Windsor case with a trial record.

However, recent developments seem to indicate that Kennedy is firmly on our side, so the main effect is to speed up TX, LA, MS, ND, SD, and NE while slowing everyone else down.
278. SeattleRobin | November 7, 2014 at 12:32 am

As much as reading Sutton's opinion enraged me, I am happy that the Michigan case has a good chance to be the one which ultimately results in establishing full ME.

As I've said before, any case is fine for the near future end result. But when it comes to studying the topic decades from now as part of our national history, the Michigan case is excellent because it contains everything in one tidy package. A student merely has to start at the beginning, and by reading the briefs, trial transcripts, and opinions, can get a pretty full understanding of not only the legal and constitutional issues, but also the historical and cultural context, and the social science surrounding the push for gay rights.
279. guitaristbl | November 6, 2014 at 6:56 pm

We should start now to ponder our chances to SCOTUS. Given that DeBoer is the clear favourite to be granted, can we take absolute solace for today's ruling to a near certainty of prevalence in SCOTUS that stems from the denial of cert, that lead to marriage equality to 32 states (also can we make them 35 now or this ruling adds roadblocks for KS, MT and SC ?) ?

I still don't know if we can absolutely trust SCOTUS…Will Kennedy take this 32 (or 35) figure as indicative or will he consider the 16 states which got ME through the denial of cert as not counting towards that goal, as Sutton seemed to do ?

Also can we take solace at the fact that the issue goes at SCOTUS with the circuit opinion under it very poorly written ?
280. wes228 | November 6, 2014 at 8:02 pm

It shouldn't create roadblocks in KS, MT, and SC. While the 6th Circuit's ruling could have been influential on those courts before, they are now under *binding* precedent from their own circuits that they have to abide by.
281. Pat_V | November 7, 2014 at 1:10 am

What is the expected timeline for the resolution of MT and SC? I lost track a little…
282. SeattleRobin | November 7, 2014 at 12:39 am

Sutton's opinion may be poorly reasoned, but it's not at all poorly written. I was actually very impressed with his writing, even while smoke was coming out of my ears at what he was saying.

Sutton basically put lipstick on a pig. It was drivel, but eloquent drivel.
283. guitaristbl | November 7, 2014 at 3:20 am

It's what Daughtrey essentially wrote at the beginning of her dissent basically slamming Sutton : "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."
Sutton may write as eloquently as he wants, the constitutional void this decision has shows anyway. He is a fool if he thinks a nice writing will hide the terrible weakness of this opinion before much more experienced judges.
284. Rick55845 | November 6, 2014 at 7:09 pm

Religion has nothing to do with reason. People who believe in "gods" are retarded. Do we really want them to rule us?
285. BenG1980 | November 6, 2014 at 7:34 pm

My apologies if anyone has beaten me to the punch on this one, but it seems appropriate in light of today's developments to once again quote Judge Heyburn, who decided the two Kentucky cases and who now has been overruled by Judges Sutton and Cook, by saying: "THESE ARGUMENTS ARE NOT THOSE OF SERIOUS PEOPLE."

Also, apropos of this past Tuesday, let us recall that Judge Heyburn was nominated by President George H. W. Bush on the recommendation of Senator Mitch McConnell. The fact that Judge Heyburn, now a senior judge who took the bench over two decades before Jeff Sutton, put politics and ideology aside and recognized the absurdity of the state's arguments makes Sutton's opinion just that much more inane.
286. RnL2008 | November 6, 2014 at 8:08 pm

Sutton is a bigot and it shows in this ruling……..one CAN'T be serious when they say stuff about no laws being discriminatory and how they apply ti everyone and shiet like that……..I wanted to so believe that Justice Sutton would have done the right thing….but NOPE and he followed all the wrong reasons to get to his conclusion!!!
287. Zack12 | November 7, 2014 at 1:19 am

I wanted to believe it too (and I even made posts saying so.)
But Sutton's history should have told us there was no way he was going to rule in our favor.
288. SeattleRobin | November 7, 2014 at 7:47 am

Yep, Zack. I made a couple posts saying I didn't completely rule out Sutton going our way. Especially after the denials of certs. It figures that one of the rare times I'm an optimist it proves pointless.
289. LK2013 | November 6, 2014 at 7:59 pm

Clearly Sutton is not a serious person.

He is a bigot. He is a partisan bigot who has farted out a poorly reasoned, badly written decision that is unworthy of a federal circuit court, and unworthy of the good people who looked to the courts for justice.
290. StraightDave | November 6, 2014 at 10:02 pm

If he were a baseball player, he would soon be on his way back down to the minor leagues. Regardless of ideology or judicial philosophy, things on which we can all fairly disagree, this was a piece of garbage from a professional standards perspective. It's embarrassing to the entire court and just begging to be smacked down loudly. If we were going to get at least one negative ruling, I'm glad that it came out looking this shitty.
291. JayJonson | November 7, 2014 at 6:15 am

I certainly hope that he will be smacked down loudly by a SCOTUS majority. But I do not believe that the "entire court" will consider it a piece of garbage. In fact, I suspect that Roberts will especially appreciate it. As SeattleRobin pointed out above, the opinion is actually very well written. It contains all the Federalist Society buzzwords and implies that were the question up to him as a policy matter, he would be on the side of the angels, but, alas, he must defer to the will of the voters, who are coming around and will ultimately do the right thing. We, of course, know that this rhetorical ploy masks a complete failure to actually apply constitutional analysis of the real-world effects of the marriage bans.

We certainly regard the opinion as "shitty," but at least four members of the Supreme Court will embrace it. Even more important from Sutton's point of view, regardless of how it will fare with the current SCOTUS members, it will move him up on the list of potential SCOTUS appointees should Bush or Christie or Paul become President.
292. wes228 | November 6, 2014 at 8:03 pm

I think this is going to turn out to be a positive development. A circuit split was going to happen sooner or later…it definitely would have happened with the 5th Circuit. I'm thankful it was sooner rather than later. If we had to wait for the 5th Circuit to rule we probably would have had to wait until the next Supreme Court term.
293. Zack12 | November 6, 2014 at 8:35 pm

I agree.. better for this to happen now then next year.
294. Mike_Baltimore | November 6, 2014 at 8:16 pm

Off topic:

From the 'Washington Blade':
'Latvian foreign minister comes out'

I believe Rinkēvičs is the first official from a former USSR nation to announce that they are not straight.
295. ragefirewolf | November 7, 2014 at 5:55 am

Link?
296. Mike_Baltimore | November 7, 2014 at 6:06 pm

My apologies for not providing a link (I thought I had, apparently I didn't).
http://www.washingtonblade.com/2014/11/06/latvian…
297. ragefirewolf | November 7, 2014 at 6:09 pm

No problem 🙂
298. Ragavendran | November 6, 2014 at 8:19 pm

My new favorite for a T-Shirt slogan: "It lacks only a stake through its heart" on one side, and "Go Figure" on the other side. I can't quite make up my mind which side should say what.
299. StraightDave | November 6, 2014 at 10:09 pm

Oh, they definitely should be side by side.
– stake thru the heart (at Scotus' hand on Oct 6)
– Sutton holding his opinion
– "Go figure"

Priceless!
300. Ragavendran | November 6, 2014 at 8:32 pm

With the DeBoer plaintiffs filing for cert very soon, even if the State of Michigan takes their full 30 days to respond, barring them asking for an extension of time to file a response (for an inordinate amount of time) and that request being granted, this case is all but certain to be granted cert in time to be argued and decided this term. There is no point in waiting for some other circuit to rule, because you are not going to get another case like this one with a full trial record, clean of any standing-related issues, and providing the best vehicle to resolve the constitutional issue at hand.

However, I remain cautiously optimistic with regard to placing my trust on Kennedy to do the right thing. He did seem eager to get past the standing issue in Hollingsworth last year – but whether to affirm, reverse or dig, we don't know. Despite today's abundantly foolish majority opinion, there are parts of it that to me, felt like Kennedy would be nodding to if he were reading them (in isolation, of course!) But then again, I remind myself those parts are few and severely outweighed by other parts in today's dissent and the majorities/concurrences of the 4th, 7th, 9th, and 10th.
301. Zack12 | November 7, 2014 at 12:37 am

I think there are parts he would nod at as well but I go to Scalia's dissent.
He didn't write the part about this not being a small ruling just for kicks.
Despite the talks of Federalism, Kennedy didn't rule on those grounds in Windsor using the 10th amendment.
He ruled on the 5th amendment, something he had to know would lead to equality at some point.
302. guitaristbl | November 7, 2014 at 3:30 am

I remain cautiously optimistic as well mainly because Kennedy now has to think of same sex couples in 16 states (soon 16 hopefully anyway if proceedings do not stop in MT, KS and SC) who are getting married or will get married due to SCOTUS's actions : denying certs to 3 circuits and denying stays to states in the 9th. Ther will be huge social and legal crisis if SCOTUS upholds the bans, true chaos in a big number of states. Kennedy has to think of that now as well apart from constitutional principles, he can't ignore it. Heck even Roberts may consider this argument now given how obsessed with his legacy (not saying he will vote in favour of equality but I suspect he won't do much to convince Kennedy for the opposite).
I just can't think of a way this court could uphold the bans without tarnishing its reputation for ever and creating unprecedented chaos to 16 states at the very least.
303. JayJonson | November 7, 2014 at 6:21 am

I don't see Kennedy nodding in agreement at anything in this ruling. I think he will be insulted by it, especially the absurd reading of Windsor and the complete absence of any concern for the children of same-sex parents, as well as the narrowness of the interpretations of Lawrence and Romer. (What makes Lawrence such a great ruling is not that it found a right to commit a particular sex act but that it recognized the liberty value inherent in making decisions about sexual life, and its insistence that gay people deserve respect.) Kennedy has never signed onto an extreme "states rights" aspect of federalism.
304. Waxr | November 6, 2014 at 8:37 pm

I would love it if the Supreme Court remanded the decision back to the 6th and told them to reconsider under "strict scrutiny". But it won't happen.
305. flyerguy77 | November 6, 2014 at 10:39 pm

Can the Supreme Court reverse the decision, and send the case back to 6th CA to tell them to rehear the case again on the facts from other cases like Windsor, Lawerence, 7th CA, 4th CA, 10th, and 9th CA decisions? I'm seeing that because i think they don't want to hear these cases if they really need to..
306. Ragavendran | November 6, 2014 at 8:47 pm

If Sutton is so cautious and concerned about the limits of his authority as a federal judge, then why did he spend nearly 25 pages discussing the merits after concluding that Baker precludes him from doing so? Is this not enough to demonstrate his hypocrisy? (In reality, he probably discussed the merits anyway because he probably anticipated a one-line vacate-and-remand from the Supreme Court saying Baker is no longer good law and asking him to rule on the merits. Thanks to his full discussion of the merits, that is no longer a means for the Supreme Court to punt.)
307. Ragavendran | November 6, 2014 at 9:04 pm

Dale Carpenter covers all possibilities for how soon the Supreme Court could rule on the issue: http://www.washingtonpost.com/news/volokh-conspir…

One thing he mentions which I hadn't thought about is that even if none of the Plaintiffs request en banc review, the Sixth Circuit could do so on its own motion. Someone like O'Scannlain, if present in the Sixth, could do this just to inject delay, and give cause for the Supreme Court to wait until the en banc proceedings are finished. Still, this should get resolved by 2016. Also, in case of an adverse event such as a vacancy at the Supreme Court that disfavors our side, a 4-4 tie would leave in place the Sixth's decision until the vacancy is filled, and then another case would have to wind up there once the Court is restored to its full strength. Given the GOP-controlled Senate and an uncertain 2016 president, who knows how the new Court would rule?
308. Waxr | November 7, 2014 at 3:10 am

If the Sixth Circuit reviews the case en banc, then all the work Sutton did in writing his decision will have gone to waste. But it will go to waste anyway.
309. guitaristbl | November 7, 2014 at 3:35 am

I consider it highly unlikely that a 6th circuit judge would do that without any plaintiffs, it would be such an obvious obstruction for SCOTUS. They should already be uneasy enough in the 6th with such an opinion, on whatever side of the fence they reside.
310. Ragavendran | November 6, 2014 at 9:15 pm

I hope the courts in SC, MT, MS, AR continue proceedings and rule quickly, instead of delaying based on speculation about SCOTUS taking up ME this term.
311. Waxr | November 6, 2014 at 9:27 pm

Judge Sutton misrepresents Loving when he says, "Loving did not change the definition. That is why the Court said marriage is “fundamental to our very existence and survival,” 388 U.S. at 12, a reference to the procreative definition of marriage. "

Sutton is quoting a citation found within Loving. That was not the Court's view of marriage:

Loving v. Virginia 388 U.S. 1, 11
"These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."
312. Elihu_Bystander | November 7, 2014 at 3:38 am

“Judge Sutton misrepresents Loving when he says…”

That was a very astute observation on your part. In order to make this very important point of logic, one had to be completely familiar with the Loving briefs. These are the kinds of selective citations that have to be rebuffed in the petition for certiorari.

Your example also aptly demonstrates that while attorneys may have working outlines of their petitions ready to go, much work and contribution must be researched by competent staff for a finished well written document.
313. Waxr | November 7, 2014 at 6:24 am

Thank you. I noticed the discrepancy because I often use the "pursuit of happiness" argument from Loving when I'm debating the issue with others. I decided to include the entire paragraph because it showed the relationship of marriage to the 14th Amendment.
314. Waxr | November 7, 2014 at 1:38 pm

The line in Loving which Judge Sutton was quoting is:

"Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)."

Looking up Skinner v. Oklahoma the statement there is:

"We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race."

In other words, even in Skinner, "Marriage" is separate from "procreation" .
315. guitaristbl | November 7, 2014 at 3:48 am

In all honesty though and even if we consider the 6th decision as positive it has been a very rough week for equality and one likely to make Brown and ADF, AFA very happy and emboldened to continue. And it began with the Puerto Rico decision tbh. After that the elections came and then a couple of minor negative decisions in Tenessee, Houston, the denial to lift the stay in Florida and now the 6th circuit…It has not been good for sure..Let's hope the last one proves to be positive.
For now we are going though a tough period, that's for sure..
316. flyerguy77 | November 7, 2014 at 4:18 am

I don't see it as bad week for marriage equality, just bumps in the road to equality. I always expected that we would lose some cases before going to SCOTUS. Nobody was running on banning ME, BUT a couple like like Tills. Most/some of Republicans know it's losing battle now. Tils will be laughed out of court
317. RQO | November 7, 2014 at 5:49 am

Unfortunately the elections proved an illogical rightward shift in the frustrated white electorate in most states, with a lot of ultra conservatives and a smattering of true wing-nuts elected. And, of course, the most right-wing U.S. Congress since the 1920's. The adverse rulings only encourage them to "relitigate" LGBT rights in the court of public opinion. Verbal gay bashing is now fashionable and politically acceptable again (just watch Ted Cruz bring it to the Senate floor, and only god knows what the Orwellian "Animus House" will say). Alas, we'll get ME in the courts in due time, but legislative efforts like ENDA are dead in the water for the foreseeable future while the current crop of Anita Bryants riles up their uneducated, hateful, and fearful "base" at our expense.
Perhaps we should collect upcoming quotes to give to Judge Sutton to show him how friendly democratic voter persuasion is going.
318. ragefirewolf | November 7, 2014 at 5:59 am

This was an election plagued more by lack of Democratic and general turnout than an actual rightward shift in the electorate.
319. Waxr | November 7, 2014 at 6:06 am

Despite that fact that the Republican platform still endorses bans on SSM, the candidates played it down. The 6th Circuit opinion waited until after the election in order to keep the issue out of the election.
320. RemC_Chicago | November 7, 2014 at 6:39 am

I like the idea of collecting the quotes and disseminating them widely. It's easy for the general public to be unaware of, or forget, outrageous remarks made by elected officials (we have much at stake, so we pay attention more closely). I would begin my collection with the recent comment by Cruz on loving his iPhone in regards to Cook's coming out. We have that fellow in Colorado who wished violent things upon us. I still think about comments by state legislators in Maryland and here in Illinois when the state battles were going on. We're largely rational, as are most Democrats, and refuse to descend to the level of discourse favored by the extremists. But I truly believe it's essential for us to be even louder than we have been—especially in the religious freedom issue and the denigrations we've suffered by so-called leaders of Jesus.
321. guitaristbl | November 7, 2014 at 6:57 am

Yeah I consider your view very dim and pessimistic to be honest, at the other end of overall optimism. The truth is somewhere in the middle IMO.
322. hopalongcassidy | November 7, 2014 at 5:33 am

Is there any reason why we should not be working in those 4 states to repeal their bans? (Are all four constitutional amendments?…I can't seem to find that out real handily, I know someone here will know off the top of their head)
323. Silvershrimp0 | November 7, 2014 at 5:39 am

Michigan and Ohio are probably worth a shot ASAP. A couple of years ago, Nate Silver estimated that Tennessee and Kentucky would be among the last to vote against a ban on same-sex marriage. http://fivethirtyeight.blogs.nytimes.com/2011/06/…

I don't think he's updated this model since then as almost all of the action in the past couple of years has been through the courts.
324. guitaristbl | November 7, 2014 at 7:04 am

Organizations in Ohio have said immediately after the ruling in the 6th that they will work towards their effort to gather signatures to overturn the ban again (Sutton also mentioned their effort in his decision as evidence that it should be left to the public..). Ohio and Michigan provide fertile ground for something like that, but personally I am opposed to any such effort purely on principle : minority's rights are not to be put in referendums.
Kentucky needs some years still but given that democrats do tend to hold office from time to time there could be fertile ground in 5 years or so.
Tennessee turns more red everyday. If its left to the legislature (the same that had a legislator that proposed the "don't say gay" bill) and the public…I doubt this generation will see marriage equality there.
325. ragefirewolf | November 7, 2014 at 5:53 am

Considering we didn't exactly win an election toward that goal?

It's worth the effort. It's an opportunity to engage and educate the public about what it is to be LGBT and move hearts and minds toward equality, even if it doesn't produce legislation in the end.

Worst case scenario, it would moot the particular state case in it's trip to SCOTUS.
326. DACiowan | November 7, 2014 at 6:37 am

All four are state constitutional bans; This Wikipedia article shows precisely which type of law in each state bans marriage, even if it's been struck down.
327. Zack12 | November 7, 2014 at 1:14 pm

Because our rights should not be put to a public vote, that's why.
328. RemC_Chicago | November 7, 2014 at 6:32 am

I relied on Lyle's SCOTUSblog to fill me in on the ruling. After reading your comments, I couldn't bring myself to read the ruling, even though it had been expected, and even though it is what we need to move forward to the Supremes. I especially ache for those people in the 6th's states and keep thinking back to the remarkable rulings by the judges that stuck down the bans. We have to wait and hope.
http://www.scotusblog.com/2014/11/sixth-circuit-t…
329. Ragavendran | November 7, 2014 at 7:01 am

Read the dissent, RemC. That'll tell you all you really need to know about the majority's "TED talk".
330. RemC_Chicago | November 7, 2014 at 8:12 am

Thanks, I will. I have to hope and imagine that the four liberal judges will accept the case and that the dissent will prevail.
331. Dann3377 | November 7, 2014 at 6:40 am

We are most definetly on the path to full marriage equality sooner rather than later. There is NO way the SCOTUS is going to pull the plug after all this even with the courts conservative lean, it's not going to happen. We're NOT going from 32/33 states with BACK to 17 or whatever. By refusing to hear ANY of the cases before them in October, lifting the stays and allowing possibly thousands of more couples to marry is a for sure sign on how they will rule. Can you imagine the legal chaos this would cause for everyone involved? IMO the SCOTUS has tried to slow down the inevitable as best they can but that process is fast coming to an end!!
332. guitaristbl | November 7, 2014 at 7:06 am

I do hope and believe you are right that there is no way back without creating huge heartache and social and legal chaos.
333. Dann3377 | November 7, 2014 at 7:35 am

IMO it's clear. Why would they refuse to hear the previous cases and allow the stays to be lifted thus allowing many more couples to marry? (I'm repeating myself) Does ANYONE here on this thread REALLY believe they will all of a sudden say, Yes state bans are constitutional and we've changed our minds? I refuse to even entertain that idea. IANAL but common sense tells me the game is over.
334. Ragavendran | November 7, 2014 at 7:56 am

The Court has surprised us on several occasions. On rare occasions, a few Justices actually end up doing their job in the way they are supposed to, which is, they should not think about backlash, public sentiment, media, resulting chaos, etc. That is, when they take up an issue, they simply rule the way they think the Constitution requires them to, independent of these auxiliary concerns, choosing to deal with the repercussions when they reach them again, months or years down the line.

In this case, it would take just one Justice (Kennedy) to take this approach and conclude that states can constitutionally ban gay marriage if they want to, in order for the outcome to shock the entire nation. Improbable, maybe, but not impossible. The repercussions of such a ruling would be that many states under conservative leadership will go back to enforcing their bans (they might need to overcome one or two easy legal hurdles first to lift the injunctions). Then, the most pressing issue is, what about the marriages that have already happened? There is already a Michigan case in the pipeline, Caspar v. Snyder, which could resolve that question (most likely that such marriages will continue to be valid in the state contracted, in other states that continue to recognize out-of-state marriages, and for federal purposes in accordance with appropriate federal laws) for Michigan, the Sixth, and perhaps even the whole country.

And the reasoning for their cert denials could have been something other than that five Justices had already made up their minds firmly in our favor. For example, one possibility is that neither the conservatives nor the liberals were sure about which way Kennedy would swing, so they voted to deny cert right away, distancing themselves from the issue as far as they could. (And once certs were denied, the stay denials were only logical.)
335. JayJonson | November 7, 2014 at 10:33 am

Well, of course, anything is possible. But your scenario is not very likely. IMO, Kennedy is not going to be at all impressed by Sutton, who perverts the seminal cases on which his legacy will rest. Kennedy will do the right thing. So will Ginsburg. So will Breyer. So will Sotomayor. So will Kagan.
336. Ragavendran | November 7, 2014 at 11:05 am

Of course, I did say "improbable, maybe." And we do differ in our personal opinions of how much we trust in Kennedy to do the right thing, so I'm not going to reiterate my point of view regarding Kennedy again.
337. palerobber | November 7, 2014 at 7:02 am

wow, did Sutton just overrule Loving v Virginia?

"Original Meaning
[…]
Yes, the Fourteenth Amendment is old; the people ratified it in 1868. And yes, it is generally worded […] Nobody in this case, however, argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage."
338. Dann3377 | November 7, 2014 at 7:14 am

Excellent observation! I agree that this ruling seems like a huge blow to our side but honestly we should view this as a positive IMO. This needed to happen sooner or later. Like RBG said, there's no reason for the SC to get involved if the circuits are all in agreement. From everything I've read in Sutton's garbage this WILL help us!!
339. palerobber | November 7, 2014 at 7:30 am

from Sutton's Rational basis review, take one guess how he's going to get from this starting point to gay marriage…

"One [basis] starts from the premise that governments got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse."
340. palerobber | November 7, 2014 at 7:31 am

"May men and women follow their procreative urges wherever they take them? Who is
responsible for the children that result? How many mates may an individual have? How does
one decide which set of mates is responsible for which set of children?"

what may these questions have to do with gay marriage?
341. palerobber | November 7, 2014 at 7:32 am

"[…] a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them. One way to pursue this objective is to encourage couples to enter lasting relationships through subsidies and other benefits […]"

oh-uh. so here we have it — it would be unfair for gays to take these subsidies and benefits without earning them by not having children out of wedlock… er, rather, by not having to struggle sufficiently to avoid having children out of wedlock.
342. Dann3377 | November 7, 2014 at 7:44 am

Which brings us back to all the heterolsexual couples that can marry but don't procreate, can't procreate and the elderly that can't procreate! Sutton is a bigot!
343. Steve84 | November 7, 2014 at 3:50 pm

An entirely wrong assumption, however. Marriage used to be be more about property than anything else. And women were included in that property. Insofar as procreation was involved, it was to ensure that the offspring belong to the man and nobody else. But again, that was to make sure the man's property stayed in the family.
344. Ragavendran | November 7, 2014 at 7:34 am

Lyle Denniston reports this morning: "Among those three options, Option 1 might have the most promise of gaining Supreme Court review because the Sixth Circuit’s decision is the one that broke the pattern, because it involves an array of cases from four states, raising the constitutionality of bans on both new same-sex marriages and the official state recognition of out-of-state same-sex marriages, because it was written by a highly respected court of appeals judge (Jeffrey S. Sutton), because it brought a stirring dissent by another well-regarded jurist (Senior Circuit Judge Martha Craig Daughtrey), and because the opinions swept across all of the issues that have been raised in case after case — even the rather obscure question whether a refusal to recognize an out-of-state same-sex marriage violates the constitutional right to travel, and the emotional question of whether a death certificate for a same-sex spouse who has now died should show that there was a surviving spouse."

http://www.scotusblog.com/2014/11/analysis-paths-…

I agree (except with the "highly respected" part for Sutton). Even though Idaho now has increased chances of its (forthcoming) cert petition to be picked by SCOTUS, it is still unlikely. They should go with Michigan's case. Period.
345. palerobber | November 7, 2014 at 7:58 am

this bit is really, really stupid…

"And gay couples, no less than straight couples, are capable of raising children and providing stable families for them. The quality of such relationships, and the capacity to raise children within them, turns not on sexual orientation but on individual choices and individual commitment. All of this supports the policy argument made by many that marriage laws should be extended to gay couples […] [M]any people now critique state marriage laws for doing too little—for being underinclusive by failing to extend the definition of marriage to gay couples. Fair enough. But rational basis review does not permit courts to invalidate laws every time a new and allegedly better way of addressing a policy emerges, even a better way supported by evidence and, in the Michigan case, by judicial factfinding."

um, the problem isn't that the good people of Michigan extended a benefit specifically to its straight citizens but sadly just plum forgot to include the no-less-worthy gay couples. the problem is that they extended a benefit without regard for sexual orientation, but then inserted language in the law in 1996 to single out gays for exclusion.
346. StraightDave | November 7, 2014 at 8:38 am

Sutton's position here isn't just stupid and disingenuous. He misses the point entirely. Michigan's law isn't invalid because it hasn't yet caught up to the reality that SS couples are now recognized to be capable parents. It's invalid because it fails on equal protection and fundamental rights. And that would be true even if SS couples were generally bad parents. Hell, we let tons of lousy-parent OS couples get married today,. Why? Because the state doesn't second-guess anyone's choice.

I think Sutton has totally conflated an emerging social change with the basic rights which are implicated. He doesn't (or strongly pretends not to) understand the liberty interest at stake. Privately, I think he knows damn well what he's doing and is hoping he can sell it to everyone else. But he looks like a fool for even trying.
347. palerobber | November 7, 2014 at 8:39 am

man, this opinion is really a piece of work. from p. 31-32…

"The traditional definition of marriage goes back thousands of years and spans almost every society in history. By contrast, “American laws targeting same-sex couples did not develop until the last third of the 20th century.” […] This order of events prevents us from inferring from history that prejudice against gays led to the traditional definition of marriage in the same way that we can infer from history that prejudice against African Americans led to laws against miscegenation."

what am i missing — how are these two examples that he thinks differ not exactly analogous?
348. Steve84 | November 7, 2014 at 3:44 pm

A ridiculously short-sighted view of a human history and anthropology.
349. GregInTN | November 7, 2014 at 9:30 am

Sutton seems to give legitimacy to voters' "fears"

"And if there was one concern animating the initiatives, it was the fear that the courts would seize control over an issue that people of good faith care deeply about. If that is animus, the term has no useful meaning. Who in retrospect can blame the voters for having this fear?"

He doesn't explain what harm will come to voters if the courts overrule them. In essence, he seems to be legitimizing their irrational fears.

As I commented after the oral arguments, Sutton focused extensively on Baker from 1972 while then seeming to imply that the struggle for marriage equality didn't start until 2003 and that we just need to be more patient with the process. Apparently, waiting 42 years is not long enough.
350. StraightDave | November 7, 2014 at 11:29 am

I also think he's giving far too much credit to "good faith" and "care deeply".

"Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." – Warren Burger, CJ
351. SeattleRobin | November 8, 2014 at 7:35 am

There was another section in which he disingenuously arranged the historical timeline. I can't remember the specifics now off the top of my head. But I recall thinking that he was using modern history, since WWII, in an attempt to prove one thing, I think having to do with lack of animus. And it was infuriating that the more obvious conclusion was that modern events are direct reactions to previous events, codifying already existing animus into law.

Bleh, I'm not being coherent. I just remember being angry that he was talking about trees, and ignoring the surrounding forrest.
352. montezuma58 | November 7, 2014 at 11:01 am

I understand in debates you emphasize points that support your position and down play points that work against it. Sutton takes this concept to absurd extremes. He dredges up an obscure case about licensing of tug boat operators. Then he uses that case to make very broad and loose extrapolations about the intent and scope of rational basis review. Yet when it comes time to address Loving and other cases more directly dealing with the right to marry he claims those cases offer no insight into the constitutional debate because they didn't directly deal with the gender of the people involved.
353. RemC_Chicago | November 8, 2014 at 7:23 am

If SCOTUS only picks one of the states, I hope for Michigan. It had a trial and excellent findings by Judge Friedman, plus the obvious impact of denial of the rights on the kids.
354. Same-sex marriage in the &hellip | February 16, 2015 at 9:58 pm

[…] Thomaston, Scottie (November 6, 2014). “Sixth Circuit upholds same-sex marriage bans”. Retrieved November 6, […]
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