The Volokh Conspiracy

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Two more same-sex marriage cases reach the Supreme Court


The fallout from the Sixth Circuit's decision in DeBoer v. Snyder, which denied constitutional claims for same-sex marriage, continued at the Supreme Court yesterday. Petitions for certiorari were filed on Friday in the Sixth Circuit cases from Ohio and Tennessee. On Monday two more cases were filed, one from Michigan and one from Kentucky. At SCOTUSblog, Lyle Deniston has a nice summary of the issues in each.

The Michigan petition squarely asks "[w]hether a state violates the Fourteenth Amendment to the U.S. Constitution by denying same-sex couples the right to marry." Of the four pending petitions from the Sixth Circuit, it is the only case in which the district court conducted a trial on various questions about parenting and other matters. It also includes Mary Bonauto as counsel. As part of the New England-based Gay & Lesbian Advocates & Defenders, Bonauto brought the Goodridge litigation in Massachusetts that resulted in the first same-sex marriages in the United States beginning in 2004.

We learn in the Michigan petition that the state will not oppose certiorari, even though it won in DeBoer:

There is no dispute that the question raised here is of paramount importance. Respondents have advised counsel that they will file a response in this Court indicating that they do not oppose a grant of certiorari. Although prior circuit court rulings found that laws banning marriage by same-sex couples violate the Fourteenth Amendment, the Sixth Circuit disagreed. Gay and lesbian citizens in Michigan, Ohio, Kentucky, and Tennessee are denied the fundamental freedom and equal right to marry, and their families are deprived of the status, dignity, security, and stability that marriage brings. This Court should grant the petition and hold that prohibiting same-sex couples from joining in marriage violates our nation's most cherished and essential guarantees.

The Michigan petition addresses all of the main points in the Sixth Circuit's DeBoer decision, including its misplaced reliance on original meaning, its partial rational-basis analysis, its error in treating animus doctrine as if it is a search for subjective motivations rather than an objective inquiry, its treatment of fundamental rights, and its failure to apply heightened scrutiny. For any number of reasons, if the Court wants to pick just one of the four petitions now before it, the Michigan petition is probably the best candidate.

The Kentucky petition, which raises both the right-to-marry issue and out-of-state recognition, is available here.