And hey, it doesn’t matter what you say
’Cause you are invisible to the world
On November 6, 2014, in DeBoer v. Snyder, a 2-1 majority of Sixth Circuit judges reversed rulings federal trial courts in Michigan, Kentucky, Ohio, and Tennessee had issued in favor of marriage equality. Unless the parties decide to seek and are granted en banc review of that decision by all the judges of the Circuit, which early news reports indicate is not the case, the Supreme Court will quite likely grant review in DeBoer. (There are other avenues to Supreme Court review, helpfully mapped out here by Lyle Denniston on SCOTUSblog.)
For the case presents a “circuit split,” a conflict among rulings on the constitutionality of state laws excluding same-sex couples from marriage. Although the Court denied review in the cases from the Fourth, Seventh, and Ninth Circuits, clearing the way for same-sex couples in those states to marry, there was at the time no federal Court of Appeals that had ruled the other way, at least since the Court’s own 2013 decision in U.S. v. Windsor invalidating a key section of the federal government’s so-called Defense of Marriage Act. Now, with the Sixth Circuit’s anti-equality decision, the constitutional questions around marriage bans are well teed up for the Court to review.
If, however, the Court was not quite ready to take the issue up on the merits this term, there is a temporizing move it could make. If it wanted to let more lower courts rule, and likely marriage equality to come to more states, before it finally settles the constitutional questions involved, the Court could reverse and remand the case to the Sixth Circuit for a do-over.
Judge Jeffrey Sutton’s majority opinion in DeBoer relies at the outset on the Supreme Court’s 1972 summary affirmance (a one-sentence order, with no explanatory opinion) upholding Minnesota’s laws barring same-sex couples from marrying in Baker v. Nelson. (I posted an article addressing this case on CruzLines here.) Sutton appears to rule that Baker is still binding on lower courts, despite many subsequent doctrinal developments including the Supreme Court’s pro-equality decision in Windsor. If he were right that Baker disposes of the plaintiffs’ constitutional claims, leaving lower federal courts no option to rule in their favor, there would be no need for Sutton to address arguments about the definition of the constitutional right to marry or the kind of review courts should use for laws that discriminate against lesbigay people. Indeed, the 25 additional pages the majority opinion wrote would all be dictum, legally unnecessary and not binding, and arguably improper for Sutton even to have included!
So, a Supreme Court majority that wanted a little more time could grant review in DeBoer and simply hold that Baker v. Nelson is no longer the law of the land, that the constitutionality or unconstitutionality of marriage bans is now a substantial question, without actually proceeding to answer that ultimate question. The Court could then reverse Sutton’s decision holding to the contrary, treat the dicta as dicta, and remand the case for reconsideration by the Sixth Circuit in light of the Supreme Court’s declaration that Baker does not block lower courts from reaching the constitutional merits of state marriage bans. This would send a powerful signal to the Sixth Circuit Court of Appeals that it should take seriously the plaintiffs’ constitutional arguments, something the majority opinion in DeBoer does not really do.
Of course, this would extend further the time during which same-sex couples in marriage inequality states would continue to be treated as second-class citizens and suffer the vulnerability to which they and their families are exposed by reason of those states’ refusal to allow or recognize marriages of same-sex couples. There are accordingly serious reasons for the Court to take up the marriage equality issue sooner rather than later, if it is going to rule in favor of equal access to marriage. But those serious issues were there when the Supreme Court was considering the marriage equality cases from the Fourth, Seventh, and Ninth Circuits, yet the Court ducked them then. Whether the addition of conflict among the Courts of Appeals is enough to spur the Justices to action now remains to be seen.