Legal Scholar Lyle Denniston

Batman will probably show-up again; Spiderman has been crawling the marble steps seeking attention; and various flag-waving, placard-touting groups in support of and opposed to marriage equality have been a fixture along First Street in Washington D.C. over the past several weeks. As June evaporates, the Supreme Court's final day for this session, Monday, fast approaches.

There is a rare sense of growing anticipation surrounding the Supreme Court building as the Court gets ready to announce its last few decisions of the term.  Of all the cases argued before the SCOTUS this term, only 5 remain undecided, including the DeBoer same-sex marriage and adoption consolidated cases.

We here at the Law Blogger think the High Court will issue the decision this morning when their penultimate session begins at 10:00 am.

Lyle Denniston of SCOTUSBlog no doubt already has his analysis at the ready; he's probably just waiting for an opinion to read before posting to his well-read blog. The two issues the Court will likely resolve today in deciding the DeBoer case are: whether states have power to ban same-sex marriages; and whether states must recognize same-sex marriages from other states.

Currently, marriage equality is the law in 36 states. All of the state laws banning same-sex marriage in the remaining 14 states are under constitutional challenge.

When the SCOTUS began its term in October, it did not elect to review any of the then-pending same-sex marriage cases that had percolated through the federal courts of appeal. Then the Sixth Circuit reversed U.S. District Judge Bernard Friedman's opinion and order striking down Michigan's state laws banning same-sex adoptions and marriages.

In upholding the state law bans, the Sixth Circuit bucked a national trend among the federal appellate circuits which had until then uniformly ruled in favor of recognizing marriage equality. So the SCOTUS granted certiorari and today is the moment of truth on this constitutional issue.

Once the Court issues its decision, we will review and distill the opinion and provide our readers with our take on this important civil rights issue.

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Moving quickly this week, the Michigan legislature passed, and Governor Rick Snyder signed into law, an act that allows private faith-based adoption and foster care agencies to decline services to applicants that are not aligned with the agency's world view. The act, House Bill 4188, thus allows such agencies to refuse services to same-sex or unmarried couples.

Perhaps because the authors knew their bill would be subjected to strict scrutiny, enacted on the very eve of the SCOTUS' same-sex adoption and marriage cases, the preamble clearly lays out critical constitutional distinctions between private and state action. The act declares private agency placement decisions to be outside the scope of state action; the act declares private faith-based agencies free to make decisions pursuant to their stated mission.

Critics point out that Governor Snyder signed the bill into law after it sailed through both House and Senate, and after it was swiftly placed on the legislative agenda at the "last minute", apparently without notice. The ACLU has already conducted press conferences to announce they are seeking well-positioned litigants to challenge the new law.

If any of the private faith-based agencies receive public funding or assistance, a constitutional challenge could be mounted, especially if the SCOTUS declares a constitutional right to marry regardless of gender. Without the public funding component, however, it would appear that private agencies would be free to make adoption referrals consistent with their faith-based missions.

Examination of the State of Michigan's fiscal budget for the current year reveals that nearly $20 million was spent on adoption and foster care agencies; about half of the funding allocation supported private agencies. Proponents of the bill assert that its passage was necessary in order to prevent the faith-based agencies from closing their doors rather than provide services to folks they deem to be unworthy.

Considering that current state practice allows an agency to decline services for any reason, this legislation seems preemptive in nature; perhaps to ward-off attempts to adopt by same-sex couples following a prospective [and somewhat anticipated] win in the DeBoer case.  When introducing the new law, the Governor even acknowledged he expected litigation to flow from its implementation.

We shall see how all of this plays out in light of the much-anticipated DeBoer decision expected as soon as next week.

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Last week, in a country-wide referendum, Ireland legalized same-sex marriage by a convincing 62% of the heavy voter turn-out across the Emerald Isle. Of the 19 countries that have marital equality, Ireland stands alone in legalizing same-sex marriage via voter referendum.

The result was somewhat surprising considering that Ireland is overwhelmingly Catholic and only recently [1993] decriminalized homosexuality.

The Vatican's Secretary of State, Cardinal Pietro Parolin, presumably speaking on behalf of the Prelate, equated the vote to a defeat, not only of Christian values, but for humanity as a whole. The result of this referendum will, of course, continue to widen the chasm between Ireland and the Holy See.

The result of the referendum in Ireland is also unusual to the extent that wherever there is marital equality, it comes about through litigation or some form of civil rights struggle; rarely through an old fashioned plebiscite.

Here in the United States, for example, 39 states have legalized same-sex marriages; usually as the result of civil rights law suits challenging state laws that prohibit same-sex marriage. Next month, the SCOTUS is expected to decide Michigan's DeBoer case along with the companion cases arising from the United States Sixth Circuit Court of Appeals decision upholding state law bans on same-sex marriages and adoptions.

The DeBoer case could come down to the swing vote of Justice Anthony Kennedy, an Irish Catholic. Obviously, we would not expect the Justice to be swayed by events completely unrelated to the case. To us here at the Law Blogger, however, it does seem ironic that as Justice Kennedy writes his opinion on this civil rights case, events that involve the head of his church and the land of his forefathers focus the world's attention on the issue of marriage equality.

The SCOTUS decision in the DeBoer case is expected by the end of the term in late June. Stay tuned.

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They finally did it on their own terms, but the SCOTUS has granted certiorari in the DeBoer Same-Sex adoption case, and the consolidated marriage cases coming from the other states in the 6th Circuit Court of Appeals [Ohio, Kentucky and Tennessee].  Unlike most granted petitions -where the issue(s) to be presented to the High Court are framed by the petitioner- the order granting certiorari in DeBoer included the Court's own version of the two questions it will now consider:

• Does the 14th Amendment require a state to license a marriage between two people of the same sex?

• Does the 14th Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

The briefing is already underway and will likely include a host of amicus curiae contributions; oral arguments, a whole two and a half hour's worth, will take place in April, the last month for argument, with a decision to follow toward the end of the Court's term in June.

It is now well-known, but worth repeating, that each of the 14 states that persist in banning gay marriage have their state laws under some form of appellate review. When finally decided, the SCOTUS same-sex adoption and marriage cases will affect the status of this handful of holdouts, as well as provide some certainty, one way or the other, to the other 36-states that do not proscribe same-sex marriage or adoptions.

Some legal scholars opine that the SCOTUS, in fashioning the issues as they have, is appropriately focused on the two core constitutional issues that need deciding in these post-modern-day civil rights cases. Other legal scholars posit, on the other hand, that the High Court has again left open a path, as in the Windsor case, that stops short of outright requiring states to issue same-sex marriage licenses.

As Michigan Attorney General Bill Schuette says repeatedly, the sooner SCOTUS decides these issues the better.

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Last June, I was preparing for oral argument in a wrongful death case before a panel of the United States Sixth Circuit Court of Appeals in Cincinnati, Ohio.  In that file preparation, we learned that one of the judges on our panel, Jeffrey S. Sutton, a George Bush appointee, was the former law clerk to SCOTUS Justice Antonin Scalia; it does not get more conservative than that.

Judge Sutton was the presiding judge in the DeBoer case and authored the 64-page, 2-1 appellate opinion; his analysis was consistent with his conservative judicial philosophy.  As is now widely known and reported, the Sixth Circuit reversed U.S. District Judge Bernard Friedman's opinion and order from last year invalidating Michigan's ban on same-sex marriage and adoption on constitutional grounds.

As is often the case in federal appeals, the DeBoer case was combined with several others, from other states in the 6th Circuit: Ohio, Kentucky and Tennessee.  The portion of the caption in this case, listing the myriad attorneys glomming onto the file, goes on for 3 and 1/2 pages; it's getting ridiculous.

We predicted that attorneys in the DeBoer case and its companion cases would act quickly and yesterday, petitions were filed for certiorari in the case with the United States Supreme Court.  We here at this blog were pleased to see one of our guest bloggers, Wayne State Law Professor Robert Sedler, to be listed among the corps of esteemed legal counsel of record in the case.

The sole and simple issue raised on appeal is whether state denial of the same-sex right to marry [and adopt children] comports with our federal constitution.  In the petition, DeBoer asserts that hers is the ideal case because:

• there was a 9-day trial with a fully-developed record [actually, it was more like a battle-of-the-experts, as so many high-profile case are these days]; 
• unlike other states where the state attorney general declined further challenge after losing in federal court, or at the intermediate appellate stage, the Michigan Attorney General has vowed to carry on the fight to the SCOTUS; and 
• the Sixth is the first federal circuit to uphold a state law ban on same-sex marriage giving rise to a conflict among the federal circuits for the first time; something that SCOTUS looks for when assessing the hundreds of petitions for certiorari.

Assuming the SCOTUS is of a mindset to address this civil rights issue with this round of cases, and assuming that the various state actors submit their filings by mid-January, the DeBoer case could well be argued this term.

Oral arguments at some point in April will leave the High Court in a position to issue a decision in the case by the end of the term in June.

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In what legal scholars are hailing as a surprising ruling, [we were surprised here at this blog] the United States Sixth Circuit Court of Appeals upheld the state constitutional ban in Michigan on same-sex marriages and adoptions.  In doing so, the Sixth Circuit broke away from the other federal circuits to decide the issue.  These state bans have been held unconstitutional in the 4th, 7th, and 10th Circuits.

The case we are talking about here in Michigan is, of course, the Deboer case.  The ruling from Cincinnati, also encompassed state ban cases pending in Ohio, Tennessee, and Kentucky; this ruling will make the same-sex civil rights issue more attractive to the SCOTUS, no doubt.  On that note, Lyle Denniston of SCOTUSBlog, lays out three distinct procedural options that lawyers for the Deboers and the other litigants in the cases pending in the other Sixth Circuit states are analyzing as this post is being composed.

The Sixth Circuit held that states are able to determine what rules govern the institution of marriage.  One consequence of the ruling is that 100s of couples remain in legal limbo that were legally married in Michigan during the brief period between when federal judge Bernard Friedman struck the state law ban, and when the ruling was stayed on appeal.

Michigan Attorney General Bill Schuette stated briefly that he believes and has repeatedly stated that the issue will be ultimately decided by the SCOTUS sooner rather than later; that is as it should be.  Those of us in the legal industry, especially appellate watchers like Mr. Denniston, anticipate swift filings on behalf of the lawyers involved in the cases.

Last month, presumably because there was unanimity among the circuits, SCOTUS took a pass on the issue. Because of this ruling, new filings could hit the High Court by the end of the month.

We predicted wrong in one of our earlier posts; we predicted the Sixth Circuit would uphold the lower courts as the appellate courts have done in Virginia, Indiana, Wisconsin, Utah and Oklahoma throughout the federal circuits; and with more cases in the pipeline.

We here at the Law Blogger agree with Attorney General Schuette that resolution of these civil rights issues needs SCOTUS attention, and the sooner the better.

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The DeBoer same sex marriage and adoption case made big news in Michigan last spring when, following a bench trial, federal judge Bernard Friedman invalidated Michigan's ban against same-sex marriages.  The Michigan Attorney General filed an appeal to the United States Sixth Circuit Court of Appeals and had the ruling stayed, almost immediately.

A series of 6 cases from each of the states within the geography of the Sixth Circuit were argued on the same day before a 3-judge panel to determine whether banning same-sex marriage is constitutional.  Interestingly, and as a matter of legal convenience, Michigan, Ohio, Kentucky, and Tennessee each have a state constitutional provision banning same-sex marriage.

The cases have pitted states rights and conservative groups against those that believe the right to marry is a fundamental right under the United States Constitution.

According to news reports from those present at the nearly 4-hour session, the judges wore their politics on their robes.  Judge Martha Craig Daughtrey, a Clinton appointee, seemed to favor the gay marriage advocates, while Bush appointee Judge Deborah Cook sparred with her left-leaning colleague.  As is often the case with 3-judge panels, one jurist stays poker-faced; this time, it was Bush appointee, Judge Jeffery Sutton.

Since the SCOTUS decision in United States v Windsor, nearly every state's federal court system has cultivated a same-sex marriage case, usually challenging the constitutionality of a state law that bans or limits the rights of same-sex couples.  Many of these cases are now on appeal in the federal Circuits.

A common legal thread to the cases is whether the so-called "heightened scrutiny" should be brought to bear on a statutory classification based on sexual orientation or preference under the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.  The Supreme Court left this question open in its seminal Windsor decision.

This blogger was down in Cincinnati in June arguing a civil rights appeal, I have yet to receive a decision on my case.  So it could be the end of the year before we hear how the Sixth Circuit is going to decide the matter.

It looks to us over here at the Law Blogger that the SCOTUS will have to grant certiorari on one or more of these cases percolating up through the appellate courts.

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