A federal appeals court on Thursday upheld Kentucky's ban on same-sex marriage as constitutional, reversing a district judge's rulings from earlier this year and likely clearing a path to the U.S. Supreme Court for gay marriage advocates.
"This is not the end of the road for us. We're going to fight all the way," said Laura Landenwich, a Louisville attorney who represents eight same-sex couples suing the state of Kentucky. "I hate to keep quoting Martin Luther King all the time, but as he said, the arc of the moral universe is long, but it bends toward justice."
Four other appellate courts around the country recently have declared a constitutional right to same-sex marriage. But in a 2-to-1 ruling, a panel of judges on the 6th U.S. Circuit Court of Appeals in Cincinnati went the other way, siding with Gov. Steve Beshear and his counterparts in Tennessee, Ohio and Michigan, the states comprising the circuit.
The judges said it would be wiser for gays and lesbians to wait until voters in their states approve same-sex marriage through the legislative process, rather than forcing "a fundamental change" by suing.
"When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers," Judge Jeffrey Sutton wrote in the 42-page majority opinion, joined by Judge Deborah Cook. Sutton and Cook both were appointed to the bench by Republican President George W. Bush in 2003.
"Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way," Sutton wrote.
Legally, no federal appellate court should feel comfortable weighing in on same-sex marriage, Sutton wrote. In 1972, the Supreme Court refused to hear an appeal of a Minnesota case in which two men were denied a marriage license, issuing a one-line order that said the appeal did not raise "a substantial federal question," he wrote. The Supreme Court has never overruled its decision in that case, he wrote.
In a sharply worded dissent, Senior Judge Martha Craig Daughtrey said her colleagues ignored the meaning of the Supreme Court's landmark 5-4 decision recognizing marriage between two New York lesbians in the 2013 case U.S. v. Windsor.
Although the Supreme Court stopped short of declaring a right to same-sex marriage in that case, it upheld New York's authority to recognize such marriages. It called marriage bans "humiliating" to gay couples and their families, and it suggested that the bans deprive couples of their Fifth Amendment due-process rights and Fourteenth Amendment equal-protection rights.
Scores of same-sex couples seized on the Windsor decision to sue their states for marriage recognition, including Kentucky's plaintiffs, who challenged a 1998 state law and a 2004 state constitutional amendment that defined marriage exclusively as between one man and one woman. U.S. District Judge John G. Heyburn II in Louisville sided with the plaintiffs in a pair of rulings this year. Beshear appealed.
The people suing in these cases are flesh and blood, not legal abstractions who should be forced to wait years until their state legislatures feel more comfortable with them, wrote Daughtrey, who was appointed in 1993 by Democratic President Bill Clinton.
"Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win 'the hearts and minds' of Michigan, Ohio, Kentucky and Tennessee voters to their cause," Daughtrey wrote.
On Oct. 6, the Supreme Court refused to hear any of the pending cases from the other appeals courts that had ruled unanimously against marriage bans. The court did not explain its reasoning, but one justice, Ruth Bader Ginsburg, told a Minneapolis audience in September that "there will be some urgency" for the high court to intervene if the 6th Circuit split from the rest and upheld marriage bans.
The Supreme Court must step in now because there otherwise will be an unacceptable split between the states, with federal courts recognizing basic rights for Americans in places such as Virginia that somehow disappear upon crossing the Kentucky state line, said Samuel Marcosson, a constitutional law professor at the University of Louisville.
There is always the risk that Kentucky's gay-marriage plaintiffs could bring down a Supreme Court ruling against marriage equality, erasing much of the progress seen nationwide in recent months, Marcosson said. At present, same-sex marriage is legal in 32 states and the District of Columbia. But that risk is slight, he said, and the reward of a positive Supreme Court ruling would be enormous.
"Based on Windsor, based on the court's denying cert when the circuit courts were unanimous in upholding marriage equality, based on its refusal to grant stays to preserve the bans, I think it's very, very likely the Supreme Court would reverse today's decision," Marcosson said.
Landenwich, the attorney for Kentucky's plaintiffs, said she would talk to her clients and hold a conference call late Thursday with the other plaintiffs' attorneys in Tennessee, Ohio and Michigan, to decide their next move. They either could ask the roughly two dozen judges of the 6th Circuit to review the case, sitting together, or they could appeal directly to the Supreme Court.
Although it's not his call to make, since he won, Beshear said Thursday that he favored taking the case to the Supreme Court.
"I said all along that we needed clarity and certainty in Kentucky, and a lower court's ruling was not sufficient," Beshear said in a statement. "I expect the plaintiffs to appeal this ruling quickly, and I urge the Supreme Court to take up this issue."
Kent Ostrander of the Family Foundation of Kentucky, which has backed the state's marriage ban in court, said he also welcomed a high-court review. However, Ostrander said, he agreed with the 6th Circuit's argument that a courtroom is not the place to define marriage.
"From our perspective, it's very reasonable because this is a government of the people, by the people and for the people. It's not a government by the judges," Ostrander said.
Some of Kentucky's same-sex couples said it seemed inevitable the Supreme Court would get the final say. But Thursday's ruling was one more rejection to be followed by months of delay, while Americans in a majority of the states already enjoy marriage equality, they said.
"I'm really hurt and disappointed," said Lexington florist Doug Smith, who married his partner, Glenn Blind, in New York last year. "It seems like the Supreme Court will probably do a better job of making this decision, but it just hurts a lot."