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November 11, 2014 Practice Points

Same Sex Marriage Bans Upheld in Kentucky, Michigan, Ohio, and Tennessee

By Nick Kacprowski

On Thursday, November 6, 2014, in a divided 2-1 opinion, the Sixth Circuit Court of Appeals upheld same sex marriage bans in the states of Kentucky, Michigan, Ohio, and Tennessee. DeBoer v. Snyder, No. 14-1341, __ F.3d __, (6th Cir. November 6, 2014). The Court reversed the district court opinions arising from each of the four states and created a circuit split with the multiple circuits that have invalidated same sex marriage bans.

The majority opinion, which Judge Jeffrey Sutton authored and Judge Deborah Cook joined, emphasized in particular the need to rely on the democratic process to effect "such a fundamental change to such a fundamental institution." The court rejected each of the legal theories that plaintiffs offered for the unconstitutionality of the marriage bans, writing that "[n]ot one of the plaintiffs' theories, however, makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters."

Judge Daughtrey authored a spirited dissent that began by noting that the majority opinion would "make an engrossing TED Talk, or, possibly, an introductory lecture in political philosophy." The dissent rejected the majority opinion's reasoning that the legalization of same sex marriage was best left to the electorate:

If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.

Judges Sutton and Cook are George W. Bush appointees, and Judge Daughtrey is a Bill Clinton appointee. This Sixth Circuit opinion comes exactly one month after the U.S. Supreme Court declined to grant certiorari in same sex marriage cases arising out of the Fourth, Seventh, and Tenth Circuits. In the wake of the circuit split the Sixth Circuit case creates, commentators have opined that it is growing less likely that the U.S. Supreme Court can again avoid granting certiorari in a same sex marriage case.

Keywords: litigation, LGBT, same-sex marriage, bans, Sixth Circuit

Nick Kacprowski is with Alston Hunt Floyd & Ing in Honolulu, Hawaii.

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