UPDATED Thursday, May 8, 11:40 a.m.  In a third federal appeals court, for the Sixth Circuit, officials of the state of Michigan have now sought to apply the Schuette decision to support the voter-approved ban on same-sex marriage in that state.  They did so in their merits brief filed on Wednesday; the brief can be read here.

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The Supreme Court’s new display of respect for America’s voters and their capacity to decide deeply controversial issues is being turned into a defense of state ballot measures banning same-sex marriage.  In two federal appeals courts, where three such bans are now under review, attorneys defending the bans have sought to take advantage of the Justices’ April 22 decision in Schuette v. Coalition to Defend Affirmative Action.

After years of court battles over same-sex marriage, most of the arguments on both sides have become familiar.  The Schuette decision, however, is being interpreted as strong reinforcement by the Supreme Court of the right of voters in nearly three dozen states to decide who may marry in their state.  That approach appears to be designed mainly to answer the argument that voters approved same-sex marriage bans out of hostility, or “animus,” toward homosexuals.

In two of the Supreme Court’s most important decisions on gay rights — Romer v. Evans in 1996 and United States v. Windsor, just last June — the Court ruled in favor of gays and lesbians on the premise that denial of equality for them was the result of animus.  (A third major ruling in favor of gay rights, Lawrence v. Texas in 2003, relied upon a variation of that forbidden sentiment:  moral disapproval of homosexuality.)  The theory that lay behind such rulings is that singling out gays and lesbians for less favorable treatment in government policy cannot be explained except by a desire to harm such a group.

That approach has been used by supporters of same-sex marriage in their increasingly successful campaign to get courts to strike down voter-approved bans on such marriages.

What may turn out to be critical in that campaign is that Justice Anthony M. Kennedy, who is considered by many observers the most likely to hold the deciding vote when the Court does reach a test case on same-sex couples’ right to marriage equality, wrote each of those three significant rulings that used the animus or moral disapproval theory.

And, of course, it was Justice Kennedy who wrote the Court’s main opinion in the Schuette case last month.

That decision had nothing directly to do with same-sex marriage.  It upheld a Michigan state constitutional amendment, approved by the state’s voters, that banned any use of race as a factor in selecting entering classes to state universities and colleges.  But the Kennedy opinion, which controlled the outcome, is filled with broad demonstrations of trust in the good sense of the voting public.

Calling forth “the underlying premises of a responsible, functioning democracy,” Kennedy wrote: “One of those premises is that a democracy has the capacity — and the duty — to rise above [its] flaws and injustices.  That process is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues.  It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”

And, alluding to the sometimes over-heated rhetoric that arises in a political discussion about a sensitive issue, the opinion added: “The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to use racial division and discord to their own political advantage.  An informed public can, and must, rise above this.  The idea of democracy is that it can, and must, mature.”

Those views have been embraced in new filings since then in same-sex marriage cases pending in the U.S. Court of Appeals for the Fourth Circuit, where a Virginia ban will come up for a hearing on May 13, and in the U.S. Court of Appeals for the Tenth Circuit, where bans in Oklahoma and Utah were examined in separate hearings last month.

The most extensive references to the Schuette opinion came in a filing in the Fourth Circuit case of Bostic v. Rainey, by lawyers for a court clerk in Norfolk, George E. Schaefer III, who is defending the Virginia ban after the state’s new attorney general refused to do so.

The Schaefer brief (found here) noted that the Court in Schuette “reasoned that when such difficult questions are at issue, ‘our federal structure permits innovation and experimentation’ and ‘enables greater citizen involvement in the democratic process.’ . . .  As with the choice to use or not to use race as a consideration for admission into a university, the choice to allow or not to allow same-sex marriage is the subject of active and vigorous debate across the country. . . .  The plurality in Schuette based its ruling on the concept ‘that the courts may not disempower the voters from choosing which path to follow.’”

Some of the same arguments were made in a new brief filed in that case by another Virginia court clerk, Michele B. McQuigg of Prince William County.  That brief is here.

In contrast, lawyers for same-sex couples taking part in that case filed a letter with the Fourth Circuit on the day of the Schuette decision, interpreting that ruling to mean that “Virginia’s constitutional marriage amendment alters the procedures of government to target a vulnerable minority group in circumstances in which invidious discrimination would be the necessary result of the procedural restructuring.”  The only purpose of the Virginia ban, it added, was to “impose a disadvantage, a separate status, and so a stigma upon same-sex couples.”  (That letter is here.)

Because the Tenth Circuit had already held its hearings on the Oklahoma and Utah bans before the Supreme Court issued the Schuette decision, the potential impact of that ruling was argued in post-argument letters filed by both sides in each case.

An Oklahoma state official’s letter arguing that Schuette provided new support for the choice made by that state’s voters is here, and the letter from same-sex couples disputing that argument is here.  In the Utah case, the letter from the state seeking to apply Schuette to its ban is here, and the letter disputing that application from same-sex couples is here.

Because the Oklahoma and Utah cases have already been argued, it is possible that those could be the first decided at the federal appeals court level on same-sex marriage since the Supreme Court’s ruling last Term in the Windsor case.  Both of those cases were argued before the same panel, on an expedited basis.

 

 

Posted in Analysis, Featured, Same-Sex Marriage

Recommended Citation: Lyle Denniston, Schuette: An impact on same-sex marriage? (UPDATED), SCOTUSblog (May. 6, 2014, 1:50 PM), http://www.scotusblog.com/2014/05/schuette-an-impact-on-same-sex-marriage/