Gay rights advocates have had a jubilating series of court wins since the US Supreme Court struck down the Defense of Marriage Act (DOMA) and California's Proposition 8. In spite of the same old nonsensical arguments by proponents of gay marriage bans, advocates of equality might have hit a snag. More below the gay squiggle.
There are over 70 marriage equality cases working their way through the judicial system across the country today. Thirteen cases are pending before five federal appeals courts. Three cases out of Utah, Oklahoma and Virginia have already been argued before federal appeals courts. Oregon and Pennsylvania became the 18th and 19th states with marriage equality by declining to appeal federal court rulings that struck down their marriage bans. Yet thirty one states still have a law or constitutional amendment restricting marriage to the union of one man and one woman.
So far, the equal rights court wins have been notably consistent. This steady march of judicial approval of marriage equality has produced very quotable expressions of support for gay and lesbian equality from judges deciding these cases, with more historical quotations from Attorney Generals refusing to defend the unconstitutional bans. U.S. District Judge Michael McShane’s decision on Oregon’s gay marriage ban calls out the bigots who vote against equal rights for gays and lesbians, and reaffirms that the sky won’t fall when the courts strike down unethical gay marriage bans enacted by the majority of state voters against a minority:
“At the core of the Equal Protection Clause… there exists a foundational belief that certain rights should be shielded from the barking crowds; that certain rights are subject to ownership by all and not the stake hold of popular trend or shifting majorities.
I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other ... and rise.”
Oregon’s Attorney General Ellen Rosenblum reiterated the reasons why these types of voter enacted bans can’t be legally or ethically supported:
“… I have sworn an oath to uphold our state’s constitution… The oath we took also requires us to uphold the Constitution of the United States – which is the supreme law of our land.”
Surprise, surprise! The state-level gay marriage ban the voters passed seems to be in violation of the U.S. Constitution, which, coincidentally, trumps those puny anti-gay state laws and constitutions. Also, the government needs a darned good reason if it wants to discriminate against a minority:
“The Equal Protection Clause of the U.S. Constitution gives people the right to be treated equally by their government, unless there is a good reason for unequal treatment. That is, any time the government establishes different sets of rules or laws for different sets of people, there must at least be what the law calls a “rational basis” for those differences.
[It] is now clear that there is no rational basis for Oregon to refuse to honor the commitments made by same-sex couples in the same way it honors the commitments of opposite-sex couples. Marriage is the way that loving couples become family to each other and to their extended families, and there is no good reason to exclude same-sex couples from marriage in Oregon, or from having their marriages recognized here.
Because we cannot identify a valid reason for the state to prevent the couples who have filed these lawsuits from marrying in Oregon, we find ourselves unable to… defend the state’s prohibition against marriages between two men or two women.”
Just as SC Justice Kennedy said in the decision striking down DOMA, these supposedly “defense of marriage” laws are not promoting or supporting heterosexual marriage at all. Instead, they are motivated by animus against gays and lesbians. Laws based on animus, a.k.a. prejudice, are a big constitutional “No No.” (See the Romer v. Evans and Lawrence v. Texas cases.)
Meanwhile, the opponents of gay marriage continue their tired, nonsensical diatribe against equality for same-sex couples while pretending to not be biased against gays and lesbians. The twisted thinking promoted by Kentucky’s attorney Leigh Gross Latherow in defense of their indefensible gay marriage ban is that the state has a valid interest in maintaining high birthrates to keep its economy vibrant, and that same-sex marriage threatens those birthrates. Someone should tell her how babies are made. In submitting a 32-page brief, Latherow somehow neglects to explain exactly how their gay marriage ban keeps Kentucky birthrates high. Does she not realize that half the gays are lesbians, many of whom have or will birth children? Gay men can inseminate through surrogacy, or adopt children to become parents. Or they can have children from previous relationships with women. Marriage would protect those children. And clearly, gay marriage doesn’t affect whether or not heterosexuals in different marriages have children. Tennessee is making the same claim, that somehow keeping gays from getting married will spur heterosexuals to have more babies. The funniest part of this bizarre theme is the idea that the world needs more babies.
What else can the defenders of exclusion say to justify these immoral and cruel bans against same-sex families? Their original arguments that children were best off raised by heterosexual couples were demolished by studies that indicate children of same-sex couples do just as well as those raised by traditional couples. And the argument makes no sense anyway, at least in terms of gay marriage bans. Heterosexuals aren’t subjected to child-rearing tests before deciding whether they can get married. Nor are they required to be able to have children. If organizations such as NOM (the National Organization against gay Marriage) really were in support of mom and dad families, they’d work to keep moms and dads together in the same family by preventing divorce. Or they’d try to stop out-of-marriage pregnancies, rather than just fight to keep the gays out of marriage. I hope the judges tell Kentucky and Tennessee to go away until they’ve banned elderly and non-fertile heterosexuals from marriage. Until then, it’s clear that their desire to keep fertile, reproducing gay people away from the institution of marriage is based on animus toward gays, not a desire to increase the state population.
With such silly rationales for banning marriage equality, the Sixth Circuit that is hearing arguments this week on gay marriage bans in Kentucky, Michigan, Ohio and Tennessee. Unfortunately, the Sixth Circuit might be the first court to decide against gay and lesbian equality since DOMA was struck down. Judges from those four states have already added their own great arguments sure to go down in history as being key to supporting the right side of the marriage equality debate. Here’s Ohio’s Judge Black in his Henry v Wymyslo ruling:
“The record before the court is staggeringly devoid of any legitimate justification for the state's ongoing arbitrary discrimination on the basis of sexual orientation, and, therefore, Ohio's marriage recognition bans are facially unconstitutional and unenforceable under any circumstances.”
You would think that judges all across the country would be eager to create great, lasting quotable statements that will be used in future references regarding civil rights and marriage equality. What judge wants to be remembered as one of the few remaining bigots delaying fairness for gay and lesbian citizens?
Yet Sixth Circuit might still be a snag in the inevitable march toward marriage equality. Just recently the European Court of Human Rights (ECtHR in French) decided that the European Convention on Human Rights does not require that nations recognize same-sex marriage. That court is not like our Supreme Court, the European Convention on Human Rights (ECHR) is not our Constitution and European countries are certainly not equivalent to US states which are inextricably bound via the US Constitution. The ECHR is an international treaty to protect human rights and fundamental freedoms in Europe. Written and agreed to in the 1950’s, it understandably omits gay and lesbian equality. They also lack the rich case history for civil rights that our country has. What’s similar between the European and the US situation is that some states (and European countries) recognize same-sex marriage, and other states (and countries) rail against it for traditional or religious reasons. Let’s face it, when you have more states or countries in favor of a new model, it’s easier to demand the states or countries stop dragging their feet and come into the new millennium. This judgment proclaiming that the ECHR doesn’t require member nations to recognize same-sex marriage might mean just that: The ECHR neglects to address this issue and needs to be updated, hopefully as soon as there is a groundswell of European countries that allow marriage equality.
The same is true here in the USA. The more people who support marriage equality and the more state and federal courts that strike down anti-gay bans, the more likely it is that the SC judges, especially Kennedy, the swing vote on this issue, will rule in favor of equality. The Windsor SCOTUS decision is clearly skittish of creating the same public dissention that occurred when the Court decided women have a constitutional right to an abortion. The anti-gay backlash will be reduced if more people are on board with equality prior to the next Supreme Court case on marriage equality. Although the Windsor decision doesn’t address the precise level of scrutiny applied to sexual orientation discrimination, other courts have concluded that Windsor established a level of scrutiny that is higher than rational basis review. Those courts have interpreted Windsor to require that heightened scrutiny be applied to equal protection claims involving sexual orientation.
But the Sixth Circuit might pass the buck and force SCOTUS to jump back into the fray while the SC judges are still split. Striking down DOMA was a no brainer, what with state’s rights and all. The US government has no right to discriminate against same-sex couples now that some states allow same-sex marriage. Prop 8 was trickier. Part of the argument for striking down the ban was that California had allowed hundreds of gay and lesbian couples to marry before the voters enacted the ban, which means the state then invalidated their legal marriage contracts. Having given them the right to marry, then rescinding those marriages weighed against the arguments made by proponents of the ban. It also probably helped that the sky hasn’t fallen because of gay marriage in the few states that have allowed it for many years now. But even the Windsor decision (and Justice Kennedy) didn’t make a strong constitutional right to same-sex marriage.
The Sixth Circuit Court three-judge federal appeals panel heard arguments in six same-sex marriage cases from the four states on Aug 6, 2014. Here’s a recording of the oral arguments.
Bush appointee Judge Jeffrey S. Sutton could be a swing vote in this case. He repeatedly asked why gay rights advocates wanted to use the courts to hasten an outcome they were gradually winning through elections and changes in attitude. He said, “I’d have thought the best way to get respect and dignity is through the democratic process.” But maybe he’s just exasperated knowing that he’ll be called an “activist judge” if he acknowledges that the US Constitution’s equal protection actually does support marriage equality. Minorities are protected from majority rule because, well, majorities historically have been unfair and cruel to minorities. As we already know, the democratic process of majority rule is what created this hostile environment for gay and lesbian citizens with the many bans on same-sex marriage. Judge Sutton might be uncomfortable that this same-sex marriage stuff landed in his lap, but why should same-sex couples have to be denied equality for another decade hoping and waiting for bigots to stop discriminating? I’m hoping Judge Sutton is unwilling to go down in history as a judge who stood in the way of equal rights. This is his chance to be a hero to the millions of American children who have same-sex parents and who currently lack equal rights.
Clinton appointee Judge Martha Craig Daughtrey stands clearly on the side of equality. When Michigan’s lawyer said that the courts should not tamper with an institution as deeply rooted as marriage, she blithely noted that bans on interracial marriage were also deeply rooted before the Supreme Court struck them down. She’s going to vote in favor or equality, and I’d love to help her write a memorable, quotable justification.
According to WaPo, the Bush appointee Judge Deborah L. Cook might favor the right of states to ban same-sex marriage. Too bad for her, because in ten years, and in decades to come, she’ll stand out as the aberrant judged who decided to drag her feet to prevent marriage equality for a few more years because of some personal or religious bias that interfered with her understanding of the US Constitution she was sworn to uphold. With some luck and a little bravery by Judge Sutton, Cook will be the sole dissenting view standing against equality.
Some marriage equality activists think if this court rules against same-sex marriage, it would create greater pressure on the Supreme Court to rule on the issue to clear up the contradictory decisions among appeals courts. But what if they “clear it up” on the side of those who want to deny gays and lesbians equality? I think it would be better to have a groundswell of support for marriage equality before going back to SCOTUS. Another two years and lower courts will have struck down all of the anti-gay marriage bans across the nation. Unless the Sixth Circuit gives anti-equality bigots a win. Then the lower courts might start kicking the gays to the curb again.
Here’s my personal plea to the Sixth Circuit Court judges urging them to take a stand on the side of fairness and equality. Let’s hope they do what’s right and end up on the right side of history in the marriage equality debate.