UPDATED 4:49 p.m.  A second petition focusing on recognition of already-married couples has now been filed, from Tennessee.  It raises an additional issue: whether the ban on recognition violates married couples’ right to travel between the states.  The petition, docketed as 14-562, is Tanco v. Haslam.   If other petitions are filed at the Court this evening or over the weekend, they will not be docketed until Monday.

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Claiming that the federal appeals court ruling that interrupted the string of decisions in favor of same-sex marriage was “riddled with flaws,” four married couples and two surviving spouses of same-sex marriages on Friday filed the first Supreme Court challenge to that ruling.  (The case has been docketed as 14-556.)

Although the joint petition in two Ohio cases technically raised only the question of the power of states to refuse to recognize same-sex marriages that already exist, the document ranged over all of the key issues that are likely to be decisive not only on that issue, but also on the question of new same-sex marriages.  Other petitions, including ones from Kentucky and Michigan, on the right-to-marry issue are expected to be filed shortly, perhaps later today.

The divided ruling last week by the U.S. Court of Appeals for the Sixth Circuit, upholding bans on same-sex marriage in all four states in its region, was the first by a federal appeals court to veer away from a steady stream of rulings going the other way by courts at that level.  Four other federal courts of appeals, as well as more than two dozen federal trial courts, have ruled in favor of same-sex marriage rights.

The Sixth Circuit’s decision upheld bans on same-sex marriages in Kentucky and Michigan and on recognition of same-sex marriages in Ohio and Tennessee.  While the majority in that court rejected all of the arguments made by challengers to those bans, the core of the decision was the declaration that the issue of same-sex marriage should be left to the voters and legislatures of the states.  It found that view reinforced by a one-sentence Supreme Court decision in 1972, Baker v. Nelson, which indicated that the controversy did not raise “a substantial federal question.”

The appeals court said it was bound by that precedent.  The Supreme Court, however, would be free to find that precedent no longer controlling, if it were inclined to move beyond it and confront the issue anew.

Although the challengers to the bans in the four states that make up the Sixth Circuit could have taken as long as ninety days to file petitions for review with the Supreme Court, their lawyers began filing after just eight days had passed, aiming to get the issue before the Court for decision during the current Term.  There have been indications in recent days that Court aides had encouraged the attorneys to file promptly, especially because they had indicated they did not plan to ask the Sixth Circuit to reconsider the ruling en banc.

If the petitions and responses are ready for the Justices to consider by their private Conference on January 9, the cases could be heard and decided before the current Term ends, probably in late June.  If the states involved join in urging Supreme Court review, or do not resist that, the cases could be ready for the Justices’ first look earlier than that.

The Court has not acted on any petition for review of a federal appeals court decision since it issued orders on October 6 declining to consider petitions involving the bans in five states.  At that time, however, there was no division among the federal appeals courts on the issue.  That changed with the Sixth Circuit’s decision on November 6, in the case titled DeBoer v. Snyder — a title taken from a Michigan case.

In the newly filed Ohio case on the plea to require states to recognize existing same-sex marriages, the challengers cited five “critical errors of law” in the Sixth Circuit’s decision, “heightening the need for intervention by” the Supreme Court.

Here, in summary, are the claimed errors that the petition recited:

First, the Supreme Court’s summary ruling in 1972 in Baker v. Nelson barred review of new challenges to state bans on same-sex marriage.

Second, the fundamental right to marry that the Supreme Court has long recognized as guaranteed by the Constitution does not include same-sex couples.

Third, a state ban on same-sex marriage is to be judged only by the least demanding constitutional standard, “rational basis” review.

Fourth, a ban on same-sex marriage can be justified by a state policy of encouraging child-rearing by channeling opposite-sex couples, who can have children by natural means, into marriage to promote solid family formation.

Fifth, the issue of the rights and protections of same-sex couples should be left to the political processes, especially to the voters of the states acting in referendum elections.

On each of those points, the Ohio petition contended, the federal appeals courts are divided.

The petition also raised an issue under the Constitution’s Full Faith and Credit Clause, which generally requires a state to accept the official court orders issued in other states.  In this case, Ohio refuses to recognize both parents — a New York same-sex couple — on the birth certificate of an Ohio-born child whom they have adopted under a New York court decree.  Because of its ban on same-sex marriages, Ohio will list only one of the parents on the child’s birth record.  There is a split among federal appeals courts on that issue, the petition noted.

 

Posted in Same-Sex Marriage Post-Windsor, Cases in the Pipeline, Featured, Same-Sex Marriage

Recommended Citation: Lyle Denniston, First challenge to Sixth Circuit on same-sex marriage (UPDATED), SCOTUSblog (Nov. 14, 2014, 2:04 PM), http://www.scotusblog.com/2014/11/first-challenge-to-sixth-circuit-on-same-sex-marriage-2/