Hopefully, the full 6th Circuit will review and reverse ~ Sooz

Appeals Court Reinstates Gay Marriage Bans For The First Time
By Sahil Kapur Published November 6, 2014, 5:18 PM EST

The 6th Circuit Court of Appeals upheld gay marriage bans in four states on Thursday, a pivotal point in the legal battle for marriage equality that makes the Supreme Court likelier to step in and settle the issue.

It is the first appeals court to rule that same-sex marriage bans are constitutional since the 2013 Supreme Court decision in US v. Windsor. Four other federal appeals courts ruled that the Constitution protects the right of gay couples to marry, paving the way for same-sex marriage in more than 30 states.

The panel featured two Republican-appointed judges who overturned lower court decisions and upheld bans in Michigan, Ohio, Kentucky and Tennessee. One Democratic-appointed judge dissented.

"[T]he right to marry in general, and the right to gay marriage in particular, nowhere appear in the Constitution. That route for recognizing a fundamental right to same-sex marriage does not exist," Circuit Judge Jeffrey Sutton wrote for the court.

The Supreme Court surprised many legal observers by refusing to hear the issue in early October, instead letting the uniform appeals court decisions stand. As long as the full 6th Circuit court doesn't review and reverse the decision, it leaves a split in the appellate courts which creates a strong impetus for the justices to step in.

Justice Ruth Bader Ginsburg hinted as much in September, when she told a Minnesota audience that "there will be some urgency" for the Supreme Court to consider the issue if the 6th Circuit allows same-sex marriage bans to stand. Otherwise, she said, there's "no need for us to rush."

Read the decision at 2014-11-06-MI-

http://talkingpointsmemo.com/dc/sixth-circuit-marriage-supreme-court

Ian Millhiser, the author here, is an attorney and in fact clerked for this 6th Circuit Court of Appeals following law school ~ he knows what he's talking about ~ emphasis/bolding below is in the original, along with "live links" to more/corroborating information ~ Sooz

BREAKING: Marriage Equality Just Got A First Class Ticket To The Supreme Court
by Ian Millhiser Posted on November 6, 2014 at 4:27 pm Updated: November 6, 2014 at 5:33 pm

On Thursday afternoon, the United States Court of Appeals for the Sixth Circuit just became the first federal appeals court in the country to side with marriage discrimination. Although the immediate effect of this court’s 2-1 decision is that marriage equality will not quickly become the law in Michigan, Ohio, Kentucky and Tennessee, the most important consequence of the Sixth Circuit’s holding is that there is now a “circuit split” on the question of whether same-sex couples must be allowed to marry under the Constitution. A circuit split, which occurs when two or more federal appeals courts disagree on the same question of law, is one of the most common reasons that the Supreme Court agrees to hear a case. Thus, the Sixth Circuit’s decision on Thursday all but guarantees that the justices will decide whether the Constitution’s promise of equality extends to gay people in all 50 states.

To date, the Fourth, Seventh, Ninth and Tenth Circuits have all sided with equality, along with nearly every single federal trial judge to consider the question after the Supreme Court struck down the anti-gay Defense of Marriage Act in 2013. Moreover, the Supreme Court has stood aside and allowed the federal appeals court decisions supporting marriage equality to take effect. The momentum is clearly against discrimination, and Judge Jeffrey Sutton’s opinion for the Sixth Circuit shows a keen awareness of this fact. His decision reads like the Custer’s Last Stand of judicial opinions. In it, he tries to anticipate every single legal argument that can be raised in support of marriage equality, and then he attempts to bat it down.

To the justices who concern themselves with how the Constitution was understood at the time it was written, Sutton warns that “[n]obody in this case . . argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.” To those who worry about the legacy of anti-gay animus in the United States, he claims that bans on marriage equality “codified a long-existing, widely held social norm already reflected in state law.” To those that fixate on tradition, Sutton writes that “a State might wish to wait and see before changing a norm that our society (like all others) has accepted for centuries.”

According to longstanding Supreme Court precedent, however, groups that have historically been subject to discrimination that has little basis in their ability to “perform or contribute to society” enjoy heightened protection against discrimination under the Constitution. Sutton concedes the legacy of discrimination against gay people, yet he discounts its relevance to this case. His explanation for why is worth quoting at length:


Sutton is probably correct that marriage discrimination did not emerge in the same way that Jim Crow laws did. Jim Crow was part of a conscious and comprehensive effort to reduce African Americans to second-class citizenship. Laws excluding same-sex couples from the blessings of marriage, by contrast, were not always enacted with such conscious intent. But even if Sutton is correct that marriage discrimination was not enacted with the same conscious intent as Jim Crow, it is hard to see why that justifies weakening the Constitution’s promise of equality. Why does anti-gay bias become less harmful or less invidious because it was, until recently, so tightly woven into American culture that it would never have occurred to generations of Americans to extend equal rights to gay couples?

Discrimination, moreover, is does not become constitutional simply because it was enacted for relatively benign, or even benevolent, purposes. Many of the early cases challenging gender discrimination, for example, targeted laws that were intended to protect women or even place them on a chivalric pedestal. Craig v. Boren, which is arguably the Supreme Court’s most important gender discrimination case, struck down a law that discriminated against men. It is difficult to argue that the Oklahoma lawmakers who enacted that law did so because they were biased against males — especially because the law was enacted at a time when it was difficult for women to be elected to public office.

In any event, Sutton’s opinion is likely to be reversed by the Supreme Court. It is very unlikely that the justices would have allowed other court decisions siding with marriage equality to take effect unless they believed that there are five votes on the Court to extend marriage equality throughout the land.

http://thinkprogress.org/justice/2014/11/06/3590096/breaking-marriage-equality-just-got-a-first-class-ticket-to-the-supreme-court/

I'm looking for where the US Constitution says "...all men are created equal except homosexuals".

It seems to me that, in our system, the Constitution is supposed to trump bad tradition. Bad tradition isn't less bad because it's old.

A very troubling read ... mostly because strictly technically it's likely true that “[B]ecause the marriages rested solely on the district court’s erroneous decision, which has now been reversed, ... it is as if the marriages never existed.” ~ but I'm not aware of ANY legal case that intentionally strips rights from people [other than certain rights in criminal cases] ~ ~ there are "live links" to more/corroborating information in the original ~ Sooz

Michigan Tells Court That 300 Same-Sex Couples’ Marriages Are Void
by Ian Millhiser Posted on November 16, 2014 at 8:58 am

Last March, a federal district judge in Detroit held that the Constitution’s promise that no one shall be denied “the equal protection of the laws” extends to same-sex couples who wish to marry. One day later, officials in Michigan married approximately 300 same-sex couples before the district court’s decision was stayed by the United States Court of Appeals for the Sixth Circuit. Last week, a divided panel of the Sixth Circuit reversed the district court’s decision outright, becoming the first federal appeals court to rule against marriage equality since the Supreme Court struck down the anti-gay Defense of Marriage Act in 2013.

On Friday, Michigan Attorney General Bill Schuette (R) filed a brief for another federal district judge arguing that the 300 same-sex couples wedded before the Sixth Circuit’s stay have effectively been unmarried by the Sixth Circuit panel’s decision. “[B]ecause the marriages rested solely on the district court’s erroneous decision, which has now been reversed,” Schuette claims, “it is as if the marriages never existed.”

To his credit, Schuette does not ask the judge to hold that the marriages are invalid immediately — rather, he asks that the court to wait to decide this issue until after the Supreme Court weighs in on the case. As a matter of law, however, Schuette is correct that the legal basis for the 300 marriages is a district judge’s decision that has now been reversed. Indeed, should the Supreme Court ultimately rule against marriage equality, the immediate result is likely to be that tens of thousands of marriages in states across the country will be retroactively invalidated.

In October, the Supreme Court decided not to hear three federal appeals courts’ decisions that sided with marriage equality. The practical effect of this decision not to hear these cases was that it allowed the lower court decisions to take effect in many states, and same-sex couples began marrying not long thereafter. At the time of the Supreme Court’s decision not to second-guess these lower courts, we wrote that “the fact that marriages are likely to begin very shortly in the states currently subject to court orders will make it very difficult for the Supreme Court to reverse course — and retroactively invalidate those marriages — in a subsequent opinion.” It is one thing for the justices to deny a right that has historically been denied to a class of people; it is another thing altogether to allow them to enjoy that right only to snatch it away months later.

In light of recent events, however, it is no longer clear that the justices are unwilling to yank rights away from people who previously enjoyed them. Last week, the Supreme Court announced that it would hear King v. Burwell, a lawsuit seeking to defund much of the Affordable Care Act that could collapse the individual health insurance market in many states. The plaintiffs’ legal arguments in King are extraordinarily weak, and the Court’s normal procedures counseled against agreeing to hear this case right away. Nevertheless, the lead attorney for the plaintiffs predicted that the five Republicans on the Supreme Court would take the case because they aren’t “going to give much of a damn about what a bunch of Obama appointees” on a lower court think. This attorney’s suggestion that the justices’ decision could be predicted by their political party now appears to be accurate.

Should the justices accept the plaintiffs’ legal arguments in King, they will strip health insurance from millions of Americans and will likely endanger the care of thousands of Americans who need insurance to pay for essential treatments. The justices’ surprising decision to hear this case in the first place is an ominous sign that there may be five votes planning to topple health reform.

On the marriage issue, by contrast, it remains likely that there are five justices prepared to side with marriage equality. Justice Anthony Kennedy, who voted to repeal the entire Affordable Care Act in 2012, also has a fairly consistent pro-gay record.

But it is no longer clear that the justices will be dissuaded from ruling against marriage equality merely because doing so would strip many Americans of rights that they already enjoy and have already exercised.

http://thinkprogress.org/justice/2014/11/16/3592750/michigan-void-marriages/

Well, in that case getting Citizens Unoted reversed means all those bribes... uh... donations suddenly become illegal.

this KIND of thing has happened before, just not in this particular way. the invariant result is that gays have continued to gain civil rights over time. i suspect that trend won't stop. this is just a speed bump.