Marriage Litigation at the 6th Circuit

On November 6, 2014, the United States Court of Appeals for the 6th Circuit reversed 6 pro-marriage lower court rulings out of Kentucky, Michigan, Ohio, and Tennessee in an alarmingly out-of-step decision to uphold marriage discrimination. The 6th Circuit decision was reviewed by the United States Supreme Court on April 28, with a ruling expected late this summer - which could bring the country to national resolution by June 2015. 

What's Happening In the States:

The 6th Circuit covers four states – Kentucky, Michigan, Ohio, and Tennessee - and in each of these states, a federal judge ruled in favor of marriage for same-sex couples in 2013 and 2014. The individual court decisions were slightly different, and all six rulings were appealed to the 6th Circuit Court of Appeals, which ruled on November 6 to uphold marriage discrimination and reverse the rulings. Now, these cases are before the Supreme Court.  

Cases in the 6th Circuit

LANDSCAPE: On March 21, a federal judge ruled in favor of the freedom to marry in DeBoer v. Snyder, striking down the marriage ban for same-sex couples. For the next 24 hours, more than 300 same-sex couples across the state received marriage licenses in Michigan until the 6th Circuit Court of Appeals granted a stay in the decision. 

The ruling followed a landmark, two-week trial on the freedom to marry where equality supporters and opponents presented evidence and witnesses on marriage for same-sex couples. In his decision, Judge Friedman strongly dismissed testimony from the defendants' key witness, Mark Regnerus, author of the so-called "New Family Structures Study." The judge wrote that Regnerus' study - which has been repeatedly refuted by leading parenting and psychological organizations - was "entirely unbelievable and not worthy of serious consideration."

In a related case filed in state court, the American Civil Liberties Union of Michigan filed a complaint (Caspar v. Snyder) arguing that the state must respect the marriages of those 300 couples who received marriage licenses in that 24-hour window before a stay was granted. A January 2015 ruling in this case found in favor of the plaintiffs, ordering Michigan to respect those marriage licenses. 

RESOURCES, DeBoer v. Snyder:

LANDSCAPE: On Feb. 12, a federal judge ruled in Bourke v. Beshear that Kentucky must respect the marriages of same-sex couples legally performed in other states. The lawsuit was brought by private firms Clay Daniel Walton & Adams and Fauver Law Office. The American Civil Liberties Union and Stanford Law School's Supreme Court Litigation Clinic have joined the case.

Almost immediately, Kentucky Attorney General Jack Conway announced he would not defend marriage discrimination in his state, yet on March 18, KY Gov. Beshear filed an appeal with private counsel. 

Shortly after the ruling, two unmarried same-sex couples in Kentucky were granted a motion to intervene in the case, and on July 1, under the new name Love v. Beshear, the same federal judge ruled that Kentucky's marriage ban is altogether unconstitutional. 

RESOURCES, Bourke v. Beshear:

RESOURCES, Love v. Beshear:

LANDSCAPE: On Dec. 23, a federal judge ruled in Obergefell v. Wymyslo that the state of Ohio must respect the marriages of same-sex couples legally performed in other states for the purpose of listing surviving spouses on death certificates. In April 2014, in a separate federal case, Henry v. Himes, the same judge ruled that Ohio must respect all married same-sex couples who wed in other states for all state purposes. Both cases were brought by private firms Gerhardstein & Branch Co., LPA and Newman & Meeks Co., LPA, with the ACLU joining Obergefell and Lambda Legal joining Henry.

A separate federal case - Gibson v. Himes, also filed by Gerhardstein & Branch Co., LPA and Newman & Meeks Co., LPA - was filed in April 2014 seeking the freedom to marry in Ohio. 

RESOURCES, Obergefell v. Wymyslo:

RESOURCES, Henry v. Himes:

LANDSCAPE: On March 14, a federal judge ordered state officials to respect the marriages of three same-sex couples whose lawsuit, Tanco v. Haslam, challenges the state’s marriage ban. The couples are represented by the National Center for Lesbian Rights. The judge ruled that since the plaintiffs were likely to prevail in their case, they should be respected as married as the lawsuit proceeds.

The state of Tennessee appealed the ruling to the 6th Circuit Court of Appeals, requesting stay on the decision. Although Judge Trauger initially denied the motion, in April, the 6th Circuit Court of Appeals granted the request to put the ruling on hold as it proceeds.

RESOURCES, Tanco v. Haslam:

what you need to know:

Across the country, momentum is building faster than ever for the freedom to marry nationwide: same-sex couples have the freedom to marry in 37 states and the District of Columbia, as well as in some Missouri counties (based on a pro-marriage ruling now on appeal) - and support for the freedom to marry grows each day, with a February 2014 poll tracking support at 59%. With just thirteen states left that discriminate against same-sex couples, it's more important than ever to make the case that we are one country with one Constitution, and it's time for marriage nationwide. In the 60 marriage cases that have received rulings from state and federal courts since the U.S. Supreme Court ruling in Windsor v. United States in June 2013, all but a few have ruled in favor of marriage, with many of those victories now on appeal or awaiting further action.

That's why the 6th Circuit Court of Appeals' ruling is so alarmingly out-of-step - and that's why it's more important than ever for the U.S. Supreme Court to bring the country to national resolution. Review in the cases was granted by the U.S. Supreme Court on January 16, with a ruling expected by June 2015, which could bring the freedom to marry nationwide.

Read the full ruling from the 6th Circuit Court of Appeals HERE.

The 6th Circuit in the News

11/6/14 6th Circuit Court Breaks from Unanimous Appellate Rulings, Upholds Discrimination
Freedom to Marry
"Today’s ruling is completely out of step with the Supreme Court's clear signal last month, out of step with the constitutional command as recognized by nearly every state and federal court in the past year, and out of step with the majority of the American people," Evan Wolfson said.

8/6/14 LISTEN: Oral Arguments in 6th Circuit Marriage Cases
Freedom to Marry
Listen to audio, read key excerpts, and see photos of the plaintiffs and legal teams at the 6th Circuit Court of Appeals.

8/6/14 Four States' Marriage Bans Up in the Air After 3 Hours of Argument
Cases challenging bans in Kentucky, Michigan, Ohio, and Tennessee likely will come down to Judge Jeffrey Sutton’s vote.

8/6/14 Meet the Plaintiffs Standing Up for Marriage at the 6th Circuit Today
The Courier-Journal
Freedom to Marry caught up with many of these plaintiff couples prior to today's big day at the 6th Circuit.

7/23/14 Gay Marriage Appeals Court Gets Panel Assignment
The Courier-Journal
The three appellate judges who will consider the fate of gay marriage bans in Kentucky and three other states include two appointed by President George W. Bush.

7/17/14 Some Tennessee Churches Embrace Same-Sex Marriage
The Tennesseean
Two people can have a profound, loving relationship regardless of gender. As the Apostle Paul wrote, “there is neither male nor female, for you are all one in Christ Jesus.”

7/8/14 Michigan's Anti-Gay Marriage Arguments Don't 'Hold Water,' Plaintiffs Say
M Live
Michigan's arguments for not recognizing the marriages of about 300 couples who wed right after the state's same-sex marriage ban was struck down don't "hold water," the couples said in a court filing.

6/17/14 Former Republican Leaders Come Out Strong in Appellate Brief Supporting Same-Sex Marriage
Battle Creek Enquirer
A brief signed by 25 leading Republicans is among 31 briefs filed Monday supporting throwing out Michigan's ban on same sex marriage.

6/16/14 Appeals Court Sets August 6 for Marriage Arguments in Four States
The Washington Blade
The U.S. Sixth Circuit Court of Appeals has set August 6 as the single day to hear arguments in the five marriage equality cases pending before the court, setting up a historic day for each of the four states in the circuit.

5/10/14 Kentucky Gov. Beshear Files Brief in Marriage Appeal
The Courier-Journal
Appealing a federal judge's decision that the state's ban on recognizing gay marriages violates the constitutional guarantee of equal protection under the law, Beshear's hired counsel say Kentucky has a legitimate interest in encouraging procreation to support "long-term economic stability through stable birth rates."

5/8/14 Michigan Attorney General Files Brief Opposing Gay Marriage 
The Associated Press
Michigan Attorney General Bill Schuette is asking a federal appeals court to uphold the state's 2004 voter-approved gay marriage ban.

5/8/14 Gay Marriage Advocates Plan New Michigan Campaign
The Detroit Free Press
Gay-rights advocates launched a public relations campaign Thursday across Michigan to make what they said was a fresh start at persuading Michiganders that the state ban on gay marriage should be overturned.

4/28/14 Michigan AG Schuette Denied Full Appellate Review of Same-Sex Marriage
The Detroit Free Press
Schuette had petitioned for an “en banc” hearing — which means full bench — instead of the standard three-judge panel, but the court determined Monday evening that no judge “favored” the suggestion and denied the petition.

4/28/14 Appeals Court Grants Tennessee Attorney General's Request for a Stay
The Advocate
Just one month after a federal district judge declared that Tennessee must recognize the legal marriages of three same-sex couples, an appeals court has placed a hold on that decision, legally invalidating the marriages, according to The Tennessean.

4/4/14 ACLU Suing for Recognition of 300 New Same-Sex Marriages in Michigan
The Associated Press
The American Civil Liberties Union says it’s filing a lawsuit to enforce the legal rights of about 300 same-sex couples who were married during a one-day window between separate federal court decisions.

4/4/14 Gay Marriage First in Tennessee: Woman Listed as Father on Birth Certificate
The Chicago Tribune
Last month a baby in Tennessee made history: Emilia Maria Jesty was the first child born in the state to have a woman listed on the birth certificate as her "father." The marital status of the baby's parents was the subject of a flurry of court filings up to a few days before her birth.

4/4/14 Judge Says Ohio Must Recognize Same-Sex Marriages Performed Out of State
The New York Times
A federal judge in Cincinnati declared Friday that he would require Ohio to recognize same-sex marriages performed legally in other states, the latest in a series of court decisions around the country overturning restrictive state marriage laws and amendments.

3/28/14 Obama Administration to Recognize Same-Sex Marriages from Michigan
The Washington Post
Attorney General Eric H. Holder Jr. on Friday announced that the federal government will recognize same-sex marriages recently performed in Michigan. Three-hundred same-sex couples married in Michigan over the weekend before a federal appeals court granted a stay to stop the weddings from being performed.

3/22/14 Federal Judge Strikes Down Michigan Ban on Gay Marriage; State Asks for a Stay
The Detroit Free Press
In a historic ruling that provided a huge morale boost to the gay-rights movement, U.S. District Judge Bernard Friedman Friday struck down Michigan’s ban on same-sex marriage, making it the 18th state in the nation to allow gays and lesbians to join in matrimony, just like their heterosexual counterparts.

3/14/14 Federal Judge Rules Tennessee Must Recognize Same-Sex Marriage
Aljazeera America
A federal judge ruled Friday that Tennessee must recognize the marriages of three same-sex couples while their lawsuit against the state works its way through the court system.

3/6/14 Jack Conway, Kentucky Attorney General, Announces He Won't Defend Marriage Equality Ban
The Huffington Post
Kentucky's Attorney General Jack Conway delivered a powerful and emotional speech this week in which he announced that he would not defend Kentucky's ban on same-sex marriage in court. The speech comes several weeks after a federal judge struck down a portion of Kentucky's ban on same-sex unions,

3/4/14 The Shamelessness of Professor Mark Regnerus
The Associated Press
The state of Michigan this week called Mark Regnerus to testify in defense of its ban on same-sex marriage. Regnerus gained notoriety after publishing a 2012 journal article arguing that children of same-sex parents faced substantial disadvantages compared to those of different-sex parents. There’s one problem: Regnerus’ research doesn’t show what he says it does. Not remotely. No research ever has.

2/12/14 Kentucky Must Recognize Gay Marriages from Other States, Federal Judge Rules
The Washington Post
A federal judge in Kentucky ruled Wednesday that the commonwealth must recognize same-sex marriages performed in states where the unions are legal.

12/23/13 Narrow Ruling Rejects Ohio Gay Marriage Ban
The Cincinnati Inquirer
Although Judge Timothy Black's ruling applies only to death certificates, his statements about Ohio's gay-marriage ban are sweeping, unequivocal and expected to incite further litigation challenging the law.

10/21/13 Four Same-Sex Couples Sue Tennessee Over Gay Marriage
The Tennessean
On the same day that New Jersey began allowing same-sex couples to marry, four Tennessee couples filed a federal lawsuit seeking to force the Volunteer State to recognize their legal marriages.

10/16/13 Judge Says Michigan Gay Marriage Ban Will Go to Trials
USA Today
A federal judge said Wednesday that the fate of Michigan's ban on gay marriage will be decided in a trial Feb. 25, disappointing gay-rights activists who thought his decision would be immediate.

7/26/13 Louisville Couple Challenges Kentucky's Same-Sex Marriage Ban: 'Don't Want to Wait Another 20 Years'
On Friday, Bourke and De Leon filed a federal lawsuit challenging Kentucky's ban on marriage for same-sex couples. "People always talk about how things get to Kentucky 20 years later than they do the rest of the country," Bourke said. "But my partner and I have been together for 31 years and we don’t want to wait until our 50th anniversary until the state of Kentucky recognizes our marriage."

7/23/13 Ohio Judge Rules to Recognize an Out-of-State Same-Sex Marriage
MSNBC/Lawrence O'Donnell
A federal judge in Ohio recognized the out-of-state marriage of James Obergefell and John Arthur on Monday, a limited ruling but a hopeful one for same-sex marriage advocates in the state.

Recent Polling on Majority Support for Marriage Nationwide

National Polling

Regional Polling

State Polling

A February 2014 poll from The Washington Post-ABC News found that 59% of all Americans support the freedom to marry for same-sex couples. For the first time, the poll showed that there is a majority support for marriage in every region of the country, as well as plurality support in every age group.

A February 2014 poll from The Washington Post-ABC News tracked support for marriage in the Midwest at 66%. In the South, a solid 50% of voters support the freedom to marry, according to the poll.

Across the 6th Circuit states, support for the freedom to marry continues to grow, with support in Michigan at 56% and in Ohio at 50%. Even in Tennessee, support for same-sex couples is growing, with 49% of respondents in a 2013 Vanderbilt University poll saying they support legal recognition for gay and lesbian couples. 

Who Supports the Freedom to Marry?

Jack Conway, Attorney General of KY 

In March 2014, Conway announced that he would not defend Kentucky's ban on marriage for same-sex couples and would not appeal the judge's ruling in Bourke v. Beshear. In a heartfelt speech, he declared, "From a constitutional perspective, Judge Heyburn got it right ... As Attorney General of Kentucky, I must draw the line when it comes to discrimination." READ MORE AND WATCH THE SPEECH.

U.S. Sen. Rob Portman (R-Ohio)

In March 2013, Republican Senator Rob Portman wrote an editorial voicing support for the freedom to marry, saying, "I have come to believe that if two people are prepared to make a lifetime commitment to love and care for each other in good times and in bad, the government shouldn't deny them the opportunity to get married." Sen. Portman is a co-sponsor of the Respect for Marriage Act.  READ THE EDITORIAL.

U.S. Rep. Jim Cooper (D-Tenn.)

Since May 2013, Congressman Jim Cooper from Tennessee has expressed his support for the freedom to marry, calling for residents across the state to support marriage for all. He said: "My wife, Martha, and I have been married for 28 years and we think that other people who are willing to enter into a committed, life-long relationship should be able to do so. To prevent others who are serious about becoming a legally recognized couple seems like discrimination." READ MORE.

U.S. Sen. Sherrod Brown (D-Ohio)

Sen. Brown has been a longtime supporter of the freedom to marry, having voted against the so-called Defense of Marriage Act as a member of the U.S. House of Representatives in 1996 and speaking out repeatedly against discrimination. He also helped to launch Why Marriage Matters Ohio in September 2013. READ MORE.

U.S. Sens. Levin & Stabenow (D-Mich.)

Both U.S. Senators from Michigan support the freedom to marry, and both are co-sponsors of the Respect for Marriage Act, which would fully end federal marriage discrimination. After the historic Supreme Court rulings in June 2013, Sen. Levin called the wins "victories for equality," adding, "I'm hopeful that our nation’s centuries-long march toward equality will continue to move forward."  READ MORE.