The Sixth Circuit Court of Appeals in Cincinnati reversed a lower court opinion in the Tanco v. Haslam case and upheld Tennessee's ban on gay marriage.
In a 2-1 opinion written by Judge Jeffrey Sutton, the court ruled that Tennessee's constitutional prohibition against same-sex couples marrying was justifiable. The opinion combined six different lower court rulings from Kentucky, Ohio, Michigan and Tennessee into an omnibus ruling on the matter. The decision goes against an avalanche of rulings at the district, appellate and Supreme Court level which have struck down such bans.
"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," Sutton wrote. "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."
Sutton, a 2003 Bush appointee, was joined by fellow Bush appointee Deborah Cook.
The ACLU announced its intention to appeal immediately.
Martha Craig Daughtrey, a native Nashvillian and Vanderbilt Law graduate who was appointed to the court by Bill Clinton in 1993, dissented:
"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," Daughtrey wrote.
"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."
Sutton's opinion appears to ignore large swaths of the Windsor decision, a 2013 Supreme court ruling which struck down the Federal Defense of Marriage act. Sixth Circuit opinions have not fared well before the highest court in recent years. From 2008 to 2012, 24 of 25 of the court's decisions were reversed.
Indeed, in his opinion, Sutton seems to be begging for a Supreme Court intervention and, with the ruling, they may be forced off of the sidelines. The high court has allowed four different appellate court rulings that struck down bans to stand without their review.
"Just as the Court’s three decisions to stay those same court of appeals decisions over the past year, all without a registered dissent, did not end the debate on this issue, so too the Court’s decision to deny certiorari in all of these appeals, all without a registered dissent, does not end the debate either. A decision not to decide is a decision not to decide," Sutton wrote.
"But don’t these denials of certiorari signal that, from the Court’s perspective, the right to same-sex marriage is inevitable? Maybe; maybe not. Even if we grant the premise and assume that same-sex marriage will be recognized one day in all fifty States, that does not tell us how— whether through the courts or through democracy," he contintued. "And, if through the courts, that does not tell us why—whether through one theory of constitutional invalidity or another. Four courts of appeals thus far have recognized a constitutional right to same-sex marriage. They agree on one thing: the result. But they reach that outcome in many ways, often more than one way in the same decision."
Reaction from both sides was quick to pour in.
“The legacies of Judges Deborah Cook and Jeffrey Sutton will forever be cemented on the wrong side of history," said Human Rights Campaign president Chad Griffin. "Today the Sixth Circuit stood in the way of a path constructed by two dozen federal court rulings over the last year — a path that inevitably leads to nationwide marriage equality. Gay and lesbian couples in Kentucky, Michigan, Ohio and Tennessee are just as deserving of marriage equality as the rest of America. Now, more than ever before, the Supreme Court of the United States must take up the issue and decide once and for all whether the Constitution allows for such blatant discrimination. We believe that justice and equality will prevail.”
Evan Wolfson, president of Freedom to Marry, echoed Griffin.
“Today’s ruling is completely out of step with the Supreme Court's clear signal last month, out of step with the constitutional command as recognized by nearly every state and federal court in the past year, and out of step with the majority of the American people. This anomalous ruling won't stand the test of time or appeal," Wolfson said. "But with discrimination still burdening too many families, and now with this split in the circuits, Freedom to Marry calls on the Supreme Court to swiftly take these cases, affirm the freedom to marry, and bring national resolution once and for all. American couples and their families should no longer be forced to fight court by court, state by state, day by day for the freedom and dignity that our Constitution promises.”
David Fowler, of the conservative Family Action Council, hailed the decision, as one which "stuck to the facts and the law."
"The Court rightly noted that the state has authority to determine that civil rights laws should apply uniformly across the state. As the Court noted, those who advocate for special legal protections based on their sexual behaviors have not been precluded from persuading the people of this state of their need for those protections. And the court rightly recognized that those kinds of policy decisions are committed under our form of government to the legislature, not the judiciary," Fowler said.
"At a time when we needed the economy to grow, our legislators did the right thing in passing the Act. They understood that the creation of desperately needed new jobs required an expansion of existing businesses and that the prospect of a patchwork of different local laws across the state would be a hindrance to that expansion."
