Post submitted by Charlie Joughin, HRC Press Secretary
This Wednesday, the U.S. Court of Appeals for the Sixth Circuit will hear arguments on six court cases challenging four states’ bans on marriage equality. Over the last year, federal judges in Kentucky, Michigan, Ohio and Tennessee have ruled that these states’ laws and constitutional amendments that exclude same-sex couples from marriage violate the U.S. Constitution. In total there have been nineteen federal court rulings across the country against bans on marriage equality – sixteen federal district court rulings and three circuit court rulings upholding district court rulings – all since the U.S. Supreme Court struck down key provisions of the federal Defense of Marriage Act (DOMA) in United States v. Windsor in June of last year.
“What we’ve seen over the last year in court rulings from Idaho to Indiana is exactly the same as what’s happening around kitchen tables all across the country,” said HRC President Chad Griffin. “Americans know that its wrong to tell two people in love they can’t get married, just because they’re gay or lesbian. And according to nineteen federal court rulings, the U.S. Constitution agrees. This week the Sixth Circuit will be asked to decide whether state-imposed discrimination should continue, or if this nation’s most basic ideals of justice and equality shall prevail. We believe the couples and their incredible attorneys challenging these bans will prove that the state you call home should never determine your ability to marry the person you love.”
On February 12, 2014, U.S. District Court Judge John G. Heyburn II ruled inBourke v. Beshear that Kentucky ’s marriage amendment violates the constitutional principal of equal protection and that the Commonwealth cannot refuse to recognize valid same-sex marriages performed in other states. The judge, who was appointed to the bench by President George H. W. Bush, sided with four plaintiff couples who had legally married elsewhere before seeking state recognition in Kentucky. Soon after, two unmarried same-sex couples were permitted to intervene in the case. The case was renamed Love v. Beshear and on July 1, 2014, Judge Heyburn again ruled against Kentucky’s marriage ban, this time deciding against the provision forbidding the Commonwealth from performing marriages for same-sex couples. Judge Heyburn stayed his decisions in each ruling, pending appeal to the Sixth Circuit. The plaintiffs are represented by Clay Daniel Walton & Adams PLC, and Fauver Law Office PLLC.
On March 21, 2014, U.S. District Judge Bernard A. Friedman, nominated to the bench by President Ronald Reagan, ruled against Michigan’s ban on marriage equality in DeBoer v. Snyder. In the 24 hours that followed more than 300 same-sex couples across the state obtained marriage licenses until the Sixth Circuit granted a stay in the decision. Michigan has a three-day wait period after receiving a marriage license before couples can wed. The case was filed by April DeBoer and Jayne Rowse, who wanted to jointly adopt their three children that they were raising as foster parents. Judge Friedman as the presiding judge expanded the challenge to the constitutionality of the state’s ban on marriage for same-sex couples, as that was what prevented DeBoer and Rose from jointly adopting. The women are represented by private counsel, the ACLU and Gay and Lesbian Advocates and Defenders (GLAD).
The DeBoer ruling was particularly notable as it dealt a blow to the credibility of Mark Regnerus, who testified during the trial as a witness for the state after authoring a biased and flawed anti-gay parenting study that was conceived and funded by anti-gay groups. In his ruling, Judge Friedman wrote, “The Court finds Regnerus’s testimony entirely unbelievable and not worthy of serious consideration.”
On December 23, 2013, U.S. District Judge Timothy Black ruled in Obergefell v. Himes that the Ohio’s refusal to recognize the marriage of a same-sex couple who married in another jurisdiction is unconstitutional. The case was filed in July 2013, by attorney Al Gerhardstein on behalf of Jim Obergefell and John Arthur, who were seeking recognition of their Maryland marriage on John's death certificate, before John's death. The Court ordered the state to recognize Jim and John’s marriage when John died on October 22, 2013, allowing his death certificate to list Jim as his surviving spouse. Gerhardstein is joined by the ACLU and ACLU of Ohio in this case. On April 14, 2014, Judge Black ruled in another Ohio marriage case – Henry v. Himes, this time ruling that the state must recognize all marriages of same-sex couples performed in other jurisdictions. In Henry, Al Gerhardstein and Lambda Legal represent couples who wish for their out-of-state marriages to be recognized so that both parents’ names will be listed on their children’s birth certificates.
On March 14, 2014, U.S. District Court Judge Aleta Trauger ordered Tennessee state officials to recognize the out-of-state marriages of three same-sex couples. Judge Trauger did not stay her ruling, noting that the plaintiff couples would likely be victorious. The Sixth Circuit later stayed the ruling. The couples in Tanco v. Haslam are represented by the National Center for Lesbian Rights, Abby Rubenfeld, the law firm of Sherrard & Roe, Maureen Holland, and Regina Lambert.
The appeals will be heard by a three-judge panel of the Sixth Circuit. Judge Jeffrey Sutton of Ohio was appointed by President George W. Bush and was confirmed to the bench in 2003. Judge Deborah L. Cook of Ohio, also appointed by President George W. Bush, was confirmed by the U.S. Senate in 2003. Judge Martha Craig Daughtrey of Tennessee, an appointee of President Bill Clinton, was confirmed to the bench in in 1993.
There are over 70 court cases challenging discriminatory marriage bans across the country in 30 of the 31 states where such a ban exists, plus Puerto Rico. Aside from the cases before the Sixth Circuit, cases from six other states are currently pending before four federal appeals courts. The Tenth and Fourth Circuits both recently upheld rulings striking down state bans on marriage equality – Kitchen v. Herbert of Utah and Bishop v. Smith of Oklahoma in the Tenth Circuit, and Bostic v. Shaefer of Virginia in the Fourth Circuit. In total, 33 states either have marriage equality or have seen state marriage bans struck down as unconstitutional in court. Since the Supreme Court’s historic marriage rulings last year, there have been 19 consecutive federal court decisions that bans on marriage equality are unconstitutional. These rulings have come from judges appointed by both Democrat and Republican presidents.
The Supreme Court is under no obligation as to which case or cases – if any – it choses to hear on appeal. However, Justice Ruth Bader Ginsburg recently told reporters the Court will not “duck” a marriage case. "I think the court will not do what they did in the old days when they continually ducked the issue of miscegenation," Ginsburg said. "If a case is properly before the court, they will take it."
Gallup puts support for marriage equality at 55 percent – an astonishing 15 points increase from just 5 years ago – with other polls showing support at even higher margins. And support for same-sex marriage rights continues to grow in virtually every demographic group. According to ABC News / Washington Post, 77 percent of adults under age 30 favor marriage equality. 40 percent of Republicans – an all-time high and jump of 16 points in under two years – now support marriage for gay and lesbian couples, while the number of Catholics supporting marriage has grown to 62 percent,according to the New York Times. These numbers continue to grow, with no indication that support will slow down.
Same-sex couples can legally marry in nineteen states and the District of Columbia, while 31 states have a law or constitutional amendment restricting marriage to the union of one man and one woman. For more information on this and other marriage equality cases across the country, visit www.americansformarriageequality.org