Nel's New Day

August 12, 2014

Marriage Equality in Four States Relies on Bush Appointee

Filed under: Uncategorized — trp2011 @ 7:59 PM

When I saw the headline “String of same-sex marriage rulings broken,” I thought that the ruling from the 6th Circuit of Appeals had come down against marriage equality. Fortunately, it was merely a Tennessee state judge who didn’t want the federal government “to dictate to Tennessee what has traditionally been a state’s responsibility.”  Coming from Tennessee, this isn’t a surprise. Roane County Circuit Judge Russell E. Simmons decided that two gay men married in Iowa couldn’t get a divorce in their home state, opposing the argument that the Constitution’s Full Faith and Credit Clause required Tennessee to recognize a same-sex marriage performed in another state.

After 14 months and over dozen rulings in favor of marriage equality, I’m waiting to see the ruling from a three-judge panel considering federal district court rulings in four different states: Ohio, Michigan, Kentucky, and Tennessee. Martha Craig Daughtrey, a Clinton appointee, leaned to the left, and Deborah Cook, a George W. Bush appointee, veered in the opposite direction. Marriage equality for four states in the nation may, at least temporarily, rely on what Jefffrey Sutton rules.

Bush also appointed Sutton, considered by Supreme Court Justice Antonin Scalia as “one of the very best law clerks I ever had.” Yet Sutton has been praised for judicial independence after he upheld the Affordable Care Act in 2011 and been lauded on the left for his judicial independence.

In arguments, Sutton indicated that an entire class of people shouldn’t be excluded from marriage, but he doesn’t like giving people rights through the courts. An anti-marriage equality position partlycomes from the only Supreme Court precedent to deal with marriage equality, Baker v. Nelson (1972), which affirmed a lower court ruling that there was no constitutional flaw in Minnesota’s ban on marriage equality. This type of ruling is generally binding on lower courts although the Supreme Court ignored Baker last summer in ruling for marriage equality (United States v. Windsor). All the courts during the past year have used a loophole that this summary affirmance wouldn’t be a controlling precedent because it has since been undermined by “doctrinal developments.” Sutton may agree with this loophole because “the legal reasoning in other cases [were] totally inconsistent with Baker.”

Another problem is more difficult for Sutton. He thinks that the question of marriage equality should be left up to a popular vote:

“I would’ve thought the best way to get respect and dignity is through the democratic process. Forcing one’s neighbors, co-employees, friends, to recognize that these marriages, the status deserves the same respect as the status in a heterosexual couple. … If the goal is to change hearts and minds … isn’t it worth the expense? Don’t you think you’re more likely to change hearts and minds through the democratic process than you are through a decision by five justices of the U.S. Supreme Court?”

These words are in opposition Justice Anthony Kennedy’s statements about the way that LGBT marriage bans “demean” gay couples and “humiliate” their children, that LGBT marriage bans “degrade” gay people.  Sutton sees the lack of rights as “annoying.” Arguments for the couples in the case included the right to adopt children and have names on a partner’s death certificate—issues beyond “annoying.”

Daughtrey pointed out that women fought for the vote for 78 years, and that right was only accomplished through a constitutional amendment.

As Judge Luis Garcia wrote in his ruling overturning Florida’s marriage equality ban:

“This court is aware that the majority of voters oppose same-sex marriage, but it is our country’s proud history to protect the rights of the individual, the rights of the unpopular, and the rights of the powerless, even at the cost of offending the majority.”

Other issues to be addressed are whether LGBT people are a protected class subject to heightened judicial scrutiny; whether marriage is a fundamental right, regardless of gender; and whether there’s even a rational basis for denying gay couples a marriage certificate.

One example of what Sutton considers “annoying.”

Sue Stroesser, 51, is no longer eligible to drive because she recently moved to Omaha (NE) from Iowa. She can get a passport and a Social Security card, but she can’t get a driver’s license.  Stoesser legally married her partner of 30 years in Iowa, and they have two sons. To get a Nebraska driver’s license, she needs proof of her married name, and Nebraska won’t accept her marriage license as proof because the state doesn’t recognize marriage equality. The state did issue Stroesser a state license for her to practice in her health care profession, and it has been willing to take her taxes under the name of Sue Stroesser for three years. The only way she can get a driver’s license, however, is to take the time and money to go through the courts for a name change.

Just the past month, states in the nation have taken giant steps toward marriage equality:

Virginia: The 4th U.S. Circuit Court of Appeals has upheld the state’s ruling removing bans against marriage equality, a decision that also impacts North Carolina, South Carolina, and West Virginia. This is the third circuit court to strike down marriage equality bans since the Supreme Court ruled last summer against DOMA’s Section 3. Virginia’s AG is appealing. 

North Carolina: After the 4th Circuit Court ruling on Virginia, Roy Cooper, state attorney general, said he will no longer defend his North Carolina’s constitutional ban.

Florida: A state trial court struck down the state marriage equality ban on July 25, two weeks after a judge had overturned the ban for Monroe County. The state court also issued a stay pending any appeal. Two other courts have overturned the state’s ban on marriage equality, and Florida may be the first state to ruling that same-sex couples can get both married and divorced.

Colorado: On July 23, the 25th district court ruling against a marriage equality ban struck down Colorado’s ban on same-sex marriage. The court also imposed a temporary stay until a potential appeal could be heard and ordered the Denver County clerk to stop issuing marriage licenses to same-sex couples. The stay does not affect Boulder and Pueblo counties, allowing these jurisdictions to continue issuing marriage licenses to LGBT couples.

Oklahoma: A three-judge panel of the 10th U.S. Circuit Court of Appeals struck down a marriage equality ban on July 17 by upholding a lower court ruling but issued a stay of the ruling pending an appeal. The same court struck down Utah’s ban last month. The decision also impacts bans in Kansas and Wyoming. The U.S. Supreme Court issued an emergency stay that at least temporarily prevents Utah same-sex marriages from being recognized until the 10th Circuit Court hears the case. An interesting sideline to the fight for marriage equality is that the two Republican Attorney Generals, John Swallow and Mark Shurtleff, instrumental in fighting against same-sex marriage during the appeals, have been arrested. The long list of federal charges against them includes multiple charges of bribery, tampering with evidence, tampering with a witness, obstructing justice, and engaging in a “pattern of unlawful activity.”

Kentucky: A federal judge struck down the state ban on marriage equality on July 1.

Alaska: Although the state does not permit marriage equality, same-sex partners are entitled to survivor benefits under the workers’ compensation law, according to the state’s Supreme Court.

Connecticut: The state’s highest court ruled that some legal rights of same-sex couples are retroactive to predate the state’s 2008 adoption of marriage equality and earlier approval of civil unions. A widow may sue a doctor for medical malpractice for the death of her wife which occurred before the state adopted marriage equality.

California: Gov. Jerry Brown on Monday has signed a bill to replace the words “husband” or “wife” with “spouse” in the state’s constitution.

The Puyallup Tribe has become the tenth Native-American tribe to legalize same-sex marriage. Some of these tribes are in states that ban marriage equality.

The 7th U.S. Circuit Court of Appeals will hear oral arguments regarding overturned marriage equality bans in Indiana and Wisconsin on August 26. The court also denied requests that the states’ appeals be heard before the full 10-member court instead of the customary three-judge panel. The 9th U.S. Circuit Court will hear arguments about cases in Nevada and Idaho on September 8.  Other affected states from that court’s rulings are Alaska, Arizona, and Montana.

Kentucky’s attorney Leigh Gross Latherow defended the state’s ban by discussing the danger of lowering the birthrates and hurting the state’s economy with same-sex marriage. She should have seen the same-sex couples’ three newborn babies during the 6th Circuit Court arguments. And Sutton should pay attention to U.S. Michael Shane’s decision in legalizing marriage equality in Oregon:

“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.”

Conservatives argue that children should have two parents. They can make this happen in many cases by supporting marriage equality. Bans on marriage equality aren’t annoying; they are a violation of civil rights. I hope that Jeffrey Sutton figures that out before he makes his decision.

Earlier decisions available here.


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