The undefeated streak is over.
Last week, a state judge in Tennessee ruled against gay marriage, becoming the first to do so since the Supreme Court decided United States v. Windsor last year. In a case brought by two men, legally married in Iowa but seeking a divorce in Tennessee, Judge Russell E. Simmons, Jr. held that Tennessee's Anti-Recognition clause, passed directly by the voters, should stand, as "neither the Federal Government nor another state should be allowed to dictate to Tennessee what has traditionally been a state's responsibility."
Windsor Aftershocks: Now With More States' Rights
Here is Judge Simmons' opinion in short: this state court required to stick to exactly what the Supreme Court has held -- nothing more, even if the Court itself has hinted that it is willing to go farther, and therefore, a law passed by the voters of Tennessee must stand.
An interesting, and central, part of Windsor's holding was that the Federal government could not define marriage, as this was traditionally the state's domain. The Court notably declined to address a different part (Section 2) of the Federal Defense of Marriage Act (DOMA) which allows states to decline to recognize other states' gay marriages.
And yet, despite that states' rights holding, and the survival of the rest of DOMA, courts have unanimously (up until Judge Simmons, that is) held that the rest of the opinion, which spoke of fundamental rights and dignity of persons, supported the argument that gay marriage bans should be subject to heightened scrutiny (even though Justice Anthony Kennedy did not set an applicable standard of scrutiny) and therefore, these bans violate the Equal Protection Clause.
Court have implied as much, but Judge Simmons refused to imply anything, noting that the Supreme Court has never expressly overrided its Baker v. Nelson decision from 1972, which held that a state's law on same-sex marriage did not violate the Equal Protection or substantive Due Process rights under the United States Constitution. And though other courts and the plaintiffs would argue that "doctrinal developments" indicate disfavor towards that opinion, Judge Simmons declined to "predict what future appellate decisions will say other than what they have already said."
"It would be more productive for an appellate court whose opinions would have more precedential authority to delve into this analysis," he wrote.
The funny thing is: the Sixth Circuit is doing exactly that.
Will 6th Circuit Also Rule Against Marriage Equality?
As we've noted repeatedly, the Sixth Circuit already has a full slate of gay marriage appeals on its docket, a slate which led to marathon oral arguments just last week. One of those cases is a challenge to Tennessee's Anti-Recognition clause.
Will the Sixth Circuit agree with Judge Simmons? As we noted in our preview and recap of the arguments, it's hard to say: the panel is made up of two conservatives and one liberal, but one of the conservatives (Judge Deborah Cook) was mostly silent during arguments and has previously ruled against a criminal law that treated homosexual conduct differently than heterosexual conduct.
If they do, they'll be the first federal appeals court to do so. And now, they won't be alone.
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- Colo. Gay Marriage Plaintiff, a Law Prof, Takes AG to Task in Letter (FindLaw's Tenth Circuit Blog)
- Is There Any Way SCOTUS Doesn't Stay 4th's Gay Marriage Ruling? (FindLaw's Fourth Circuit Blog)
- A Trio of Gay Marriage Cases Seek SCOTUS Review (FindLaw's U.S. Supreme Court Blog)