Brett Turner, Senior Attorney, National Legal Research Group
In a long-awaited decision, the Sixth Circuit has ruled on a series of cases involving attacks upon state laws and constitutional provisions preventing recognition of same-sex marriages. DeBoer v. Snyder, No.14-1431 (6th Cir. Nov. 6, 2014). Unlike the Fourth, Seventh, Ninth, and Tenth Circuits, the Sixth Circuit held by a 2-1 majority that such provisions are not unconstitutional.
The Sixth Circuit ruling is grounded solidly in the fundamental principle of respect for the democratic process. The court began with the premise that all civilized nations refused to recognize same-sex marriage until the very recent past. It recognized that law on this subject was changing rapidly even before the federal courts became involved and that the trend was strongly in favor of increased recognition. Indeed, "[f]rom the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen." Slip op. at 7.
But to the court, this was a reason to proceed carefully. The democratic process is working; the law is changing to reflect the will of the people. The issue before the court was "whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples." Id. at 8. The holding of the court was that the democratic process should be permitted to continue.
On the law, the court began by holding that the issue was controlled by Baker v. Nelson, 409 U.S. 810, 810 (1972), which dismissed an early case raising the same-sex marriage issue for lack of a substantial federal question—a dismissal that operates as an adjudication on the merits. The consensus of other courts is that Baker has been overtaken by decades of decisions recognizing increased rights for gay people. But the DeBoer court held that Baker is controlling until the Supreme Court holds otherwise.
In the alternative, the court held that the restrictions at issue were constitutional even if Baker was not controlling. In light of the long tradition of allowing only opposite-sex couples to marry, same-sex marriage was not a fundamental right.
Sexual orientation is not a suspect classification. "The Supreme Court has never held that legislative classifications based on sexual orientation receive heightened review and indeed has not recognized a new suspect class in more than four decades. There are ample reasons for staying the course." Id. at 32. In particular, states do not discriminate against gay persons by maintaining restrictions upon same-sex marriage with a long historical tradition.
Restrictions upon same-sex marriage are not motivated by antigay animus. Indeed, many of these laws were approved in direct elections. "If assessing the motives of multimember legislatures is difficult, assessing the motives of all voters in a statewide initiative strains judicial competence." Id. at 26.
Given the absence of a fundamental right or a suspect classification, the court applied rational basis review. "A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States." Id. at 19. The court found two particular rational bases for restrictions upon same-sex marriage. First, the government has an interest in regulating human procreation:
People may not need the government’s encouragement to have sex. And they may not need the government’s encouragement to propagate the species. But they may well need the government’s encouragement to create and maintain stable relationships within which children may flourish. It is not society’s laws or for that matter any one religion’s laws, but nature’s laws (that men and women complement each other biologically), that created the policy imperative. And governments typically are not second-guessed under the Constitution for prioritizing how they tackle such issues.
Id. at 20.
Second, the states are permitted to proceed cautiously when considering changes to rules as longstanding as prohibitions on same-sex marriage:
[A] State might wish to wait and see before changing a norm that our society (like all others) has accepted for centuries. That is not preserving tradition for its own sake. No one here claims that the States’ original definition of marriage was unconstitutional when enacted. The plaintiffs’ claim is that the States have acted irrationally in standing by the traditional definition in the face of changing social mores. Yet one of the key insights of federalism is that it permits laboratories of experimentation—accent on the plural—allowing one State to innovate one way, another State another, and a third State to assess the trial and error over time. . . . How can we say that the voters acted irrationally for sticking with the seen benefits of thousands of years of adherence to the traditional definition of marriage in the face of one year of experience with a new definition of marriage?
Id. at 21.
Because rational-basis review applied, and because a rational basis was present, the restrictions under review were not unconstitutional.
DeBoer is the most complete justification yet advanced for holding that there is no broad federal right to same-sex marriage. The opinion is grounded very solidly in respect for the democratic process, which this blog has generally assessed as the strongest point in the argument against a federal right to same-sex marriage. It cleverly uses the increasing popularity of same-sex marriage as a favorable point, arguing that the success of the democratic process in defeating restrictions on same-sex marriage is a good reason to permit that process to continue.
If the strong point of the opinion is procedure, the weak point is the point and purpose of the procedure. The court admits that restrictions upon same-sex marriage are falling rapidly in both state legislatures and state elections. Realistically, at present rates, these restrictions will be abandoned by a strong majority of states within the next 10 years. Once the state law support for same-sex marriage reaches the two-thirds level, it will be hard to distinguish same-sex marriage from interracial marriage, which states are required to allow. Loving v. Virginia, 388 U.S. 1 (1967).
DeBoer's paeans to procedure are therefore sung in support of a very weak substantive right. Procedure is important, but it is less important when the substantive outcome is obvious. The great majority of federal opinions recognizing a federal right to same sex marriage are not so much wrong, as premature. Ten or twenty years from now, same-sex marriage will probably be recognized everywhere, and DeBoer does not really deny this. The end result is a rather curious disparity between procedure and substance. The court insists, probably correctly, that opponents of same-sex marriage get one more appeal to the democratic process—but it openly recognizes that opponents are highly likely to lose that appeal.
DeBoer's open recognition that the substantive debate is tilting heavily toward same-sex marriage is somewhat inconsistent with its earnest insistence that the democratic process be followed. Decisions reaching the opposite result are procedurally suspect at present levels of state law support for same-sex marriage, but they will be steadily less suspect as public support for same-sex marriages increases. The judges who wrote these decisions are essentially relying on the strength of the substantive argument to overcome procedural weakness.
The proponents of same-sex marriage who lost in DeBoer could appeal to the Sixth Circuit en banc. But it seems more likely that they will file an immediate appeal to the Supreme Court, which has already refused to overturn Fourth and Tenth Circuit decisions finding a federal right to same-sex marriage. With a real Circuit Court split now the books, the chances would appear to be good that the Supreme Court would accept the case.
