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Same-sex marriage question hits the mark in wake of circuit split

January 16th, 2015  |  Pamela Wolf

In a move unsurprising to most High-Court watchers, the Justices on Friday, January 16, agreed to take up the question of whether states can lawfully bar same-sex marriages, granting and consolidating four petitions they considered during their conference. A round of earlier petitions, filed before a federal appeals court created a circuit split, missed the mark.

The Justices granted cert and consolidated four petitions seeking review of the Sixth Circuit’s consolidated ruling upholding same-sex marriage bans in Kentucky (Bourke v. Beshear), Michigan (DeBoer v. Snyder), Ohio (Obergefell v. Hodges), and Tennessee (Tanco v. Haslam). According to Sixth Circuit, the man-woman marriage laws in these states did not violate the Fourteenth Amendment—even in the wake of the Supreme Court’s landmark decision in United States v. Windsor, which invalidated the Defense of Marriage Act’s definition that limited marriage to a man-woman union for purposes of federal law.

The Sixth Circuit’s ruling is contrary to the conclusions of every other Circuit Court of Appeals that has decided the same-sex marriage issue.

That appeals court also ruled that states do not run afoul of the Fourteenth Amendment by refusing to recognize same-sex marriages performed elsewhere. As the appeals court put it, “If it is constitutional for a State to define marriage as a relationship between a man and a woman, it is also constitutional for the State to stand by that definition with respect to couples married in other States or countries.”

The Sixth Circuit predicted that America would ultimately permit gay couples to marry; it’s merely a question of when and how that will come about. “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,” wrote Judge Jeffrey Sutton. “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.”

Judge Martha Craig Daughtrey dissented.

High-Court query. The Justices have granted cert on two questions:

  • Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
  • Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

Ninety minutes of oral argument is allotted on the first question, and one hour is allotted for the second. The parties are permitted to file briefs on the merits and give oral argument only on the questions presented in their respective petitions. Petitioners’ briefs are due February 27; Respondents’ briefs are due March 27, 2015; reply briefs are due April 17.

Idaho petition presents additional questions. The Justices have not yet decided whether to review the validity of same-sex marriage bans in Idaho—a case that raises issues not present in the cases now consolidated for scrutiny by the Court. Governor “Butch” Otter filed a petition for cert seeking review of the Ninth Circuit’s ruling that invalidated Idaho’s laws limiting marriage to a man-woman union. The State of Idaho has filed a separate petition for cert in the case. The petition has not yet been set for conference.

What makes the petition in Otter v. Latta stand out from the others is that the Ninth Circuit saw the man-woman marriage laws in both Idaho and Nevada as discriminating based on sexual orientation, and thus applied heightened scrutiny in assessing whether the states’ motivations were sufficient to overcome the resulting inequality. Other appeals court rulings have not relied on the sexual-orientation argument and have applied only rational-basis scrutiny.