Kevin Schofield's writings, observations, and other pointless distractions
Today the Sixth Circuit Court of Appeals issued a ruling supporting four states’ ban on marriage for same-sex couples. And with that, it is virtually assured that the Supreme Court will finally take up the issue.
The excellent SCOTUSblog has a thorough writeup of the ruling, and its reasoning.
The judges’ reasoning boils down to four points (which you may disagree with — many other judges have):
1. In 1972, a prior case, Baker vs. Nelson, on the validity of same-sex marriage bans, was declined for review by the Supreme Court, “for want of a federal question.” That has been used to argue that the definition of marriage was clearly a state issue, not a federal one.
2. The 2013 Windsor case on DOMA, decided by the Supreme Court, specifically said that it wasn’t deciding the issue of limits on states’ right to define marriage. So while all the other recent appeals court opinions have relied on Windsor to argue that Baker vs. Nelson is no longer the controlling precedent, the Sixth Circuit disagrees.
3. The test of laws banning same-sex marriage should apply the “rational basis” standard, which is the most lenient one, and the states had proposed two acceptable bases, one of which was that the state was simply trying to codify the social norms of traditional marriage.
4. The landmark 1967 case Loving vs. Virginia, which struck down laws banning interracial marriage, did not redefine traditional marriage.
Four other circuit courts of appeals have disagreed.
The general belief is that the Supreme Court has declined to review any cases of state same-sex marriage bans so far is because all of the circuit courts were in agreement. But now there is a split — and that practically guarantees they will review it. Expect appeals to be filed quickly, in the hope that it will be heard and decided this term.