Against the recent trend in federal circuit courts, the Sixth Circuit has refused to hold state laws supporting the traditional definition of marriage unconstitutional, largely on states’ rights, non-religious grounds. Last month, in a 2-1 decision, the Sixth Circuit reversed decisions of four district courts that struck down such state laws. See DeBoer v. Snyder, No. 14-1341, 2014 WL 5748990 (6th Cir. Nov. 6, 2014) (click here for copy of the opinion). This decision applies to Kentucky, Michigan, Ohio, and Tennessee. The Sixth Circuit’s decision is likely to be appealed to the Supreme Court, but whether the Supreme Court will elect to hear the case is anybody’s guess. For now, the traditional one woman-one man definition of marriage remains the law of the land in the four states under the Sixth Circuit’s jurisdiction. Other district courts not under the Sixth Circuit’s jurisdiction may elect to disregard the Sixth Circuit’s decision. See, e.g., Rolando v. Fox, No. CV-14-40-GF-BMM, 2014 WL 6476196 (D. Mont. Nov. 19, 2014).
Background: United States v. Windsor and the aftermath
In 2013, the Supreme Court struck down the Defense of Marriage Act. The Court’s decision made the prohibition of same-sex marriage illegal in the federal context, but did not expressly address state laws addressing the issue. AfterWindsor, however, federal courts have rapidly overturned state laws prohibiting same-sex marriage as being invalid under the U.S. Constitution’s due process and equal protection protections. In the federal system, there are twelve circuit courts of appeal with geographical jurisdiction. Each court covers several states. Prior to the Sixth Circuit’s DeBoer decision last month, the Fourth, Seventh, Ninth, and Tenth Circuits decided cases that effectively legitimized same-sex marriage in the 30 states within those circuits. The District of Columbia also recognizes sex marriage. Six other federal circuit courts have yet to chime in definitively. But the Sixth Circuit’s opinion may have slowed the momentum of sweeping change in the legal landscape concerning this issue.
At Issue: States’ Rights
In DeBoer, the two-judge majority did not take a position as to whether same-sex marriage should be legal. Instead, the majority focused on the core federalism question of states’ rights with respect to this issue. As the majority opinion stated at the outset:
[O]ne 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?
DeBoer at *1.
The majority framed its discussion in terms of historic federalism and concluded the Fourteenth Amendment did not prohibit such state definitions about the nature of marriage. The court held that Windsor did not address the matter of states’ rights. Instead, the court reasoned, Windsor and the Supreme Court’s refusal to disturb state family-oriented laws actually underscored the states’ right to self-determination in this area. In doing so, the court’s majority noted the extensive marriage-related prerogatives that all states have historically enjoyed without question or federal intrusion. These state-covered areas include minimum age requirements for marriage, consanguity (kinship) requirements, prohibitions against polygamy, and permissible grounds for divorce. The majority pointed out that the Supreme Court previously held that a state’s denial of a marriage license to a same-sex couple did not raise a substantial federal question. See Baker v. Nelson, 409 U.S. 810 (1972). Thus, the majority claimed, the circuit court had “no license to engage in a guessing game about whether the Court will change its mind or, more aggressively, to assume authority to overrule Baker ourselves.” Id. at *5.
In addition, the court highlighted the extensive legislative and voter activity that affirmed traditional marriage by high percentages, which strongly indicate how each state views the same-sex marriage issue and therefore deserves great deference. The court majority also observed that “traditional” marriage is just that: strongly supported by worldwide history throughout thousands of years. In contrast, other states that have legalized same-sex marriage are still within an experimental stage that – in accordance with federalist principles deferring to states’ rights – is entirely appropriate within our country’s constitutional framework.
In her dissenting opinion, Judge Daughtrey criticized the majority for treating “both the issues and litigants here as mere abstractions,” and failing to “grapple with the relevant constitutional question in this appeal: whether a state constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment.” Id. at *27. But instead of engaging in the majority’s discussion on federalism, she focused on the plaintiffs’ specific family situations and related social and psychological issues. In her judgment, these issues directly implicated equal protection rights for the plaintiffs challenging the state laws. Judge Daughtrey then analogized the equal protection rights of the plaintiffs here to the equal protections rights in historic cases involving school desegregation, miscegenation, and slavery itself. Taking this approach, she concluded that the equal protection interests of discriminated plaintiffs trumped the voice of each state’s voting majority that had codified laws against same-sex marriage. The dissent concluded that the Sixth Circuit should not have reversed. In essence, a court’s responsibility is “to right fundamental wrongs left excused by a majority of the electorate…” Id. at *42.
Appeal likely – Supreme Court may settle division
From this point forward, there are two potential avenues of appeal for the plaintiffs. First, they may request a rehearing for an en banc review by the Sixth Circuit. An en banc review would involve all sixteen judges who currently sit on the Sixth Circuit rehearing the case decided by the three-judge panel. Such rehearings are usually very rare, occurring in less than one percent of all federal appeals cases. But given the importance of this case, and its far-reaching implications, the Sixth Circuit may choose to allow an en banc review if so petitioned.
The other potential avenue is an appeal to the Supreme Court. Already groups like the American Civil Liberties Union have expressed their intent to file such appeals. In October, the Supreme Court refused to hear appeals from states affected by the decisions of the four federal circuits listed above that legitimized same-sex marriage. Whether the Supreme Court will similarly deny certiorari and refuse to hear an appeal from the Sixth Circuit is anyone’s guess. Given that there is now a split among the federal circuits, the Supreme Court may be more inclined to hear the appeal. But at this point, no one knows for sure.
Regardless of what the Supreme Court may or may not do, the potential implications for religious nonprofits are great. Many churches, other religious institutions, and faith-based organizations hold strong, sincere religious beliefs concerning the nature of marriage, sexual orientation, and same-sex marriage. While churches, for now, enjoy First Amendment protections related to sexual orientation and gender identity issues, other non-church religious organizations and faith-based businesses have more limited protections. In some states, anti-discrimination laws include sexual orientation as a protected class, and additional states may soon follow suit. Given the rapidly changing landscape in this area of the law, nonprofits should be vigilant to keep track of specific restrictions and requirements in states in which operations are conducted. Our law firm will continue to monitor the progress of appeals from the Sixth Circuit and other related cases, and provide updates as we have them.