Kentucky Marriage Equality Petition

The Plaintiffs in the dual Kentucky marriage equality cases Bourke v. Beshear and Love v. Beshear elected to file a Petition for Writ of Certiorari to the U.S. Supreme Court, asking the highest court in the country to review - and reverse - the recent holding of the Sixth Circuit Court of Appeals. That holding upheld discriminatory marriage laws in Kentucky as well as in Michigan, Ohio, and Tennessee. The Sixth Circuit is the only federal appellate court in the country to rule against challengers to such laws thus far. Four other Circuit Courts of Appeals have ruled against state bans.

A .pdf version of the complete Petition is here.

There are three primary arguments in favor of granting certiorari made by the Bourke and Love Plaintiffs: (1) there exists a profound split among the Circuit Courts on the issue of state marriage bans; (2) the Sixth Circuit opinion was incorrect and should be reversed; and (3) this issue is of critical national importance that deserves a quick resolution.

The Plaintiffs in the Michigan, Ohio, and Tennessee cases have each filed similar petitions of their own. It is possible that the Supreme Court could agree to hear all the cases together this term, or just one, or put them all off until next term. As the highest judicial body in the country, they enjoy considerable discretion.

Original Meanings

From the Sixth Circuit Court of Appeals decision upholding state same-sex marriage bans in Kentucky, Tennessee, Ohio, and Michigan, entered November 6, 2014:

Yes, the Fourteenth Amendment is old; the people ratified it in 1868. And yes, it is generally worded: it says, "[N]or shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Nobody in this case, however, argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.
Tradition reinforces the point. Only months ago, the Supreme Court confirmed the significance of long-accepted usage in constitutional interpretation...Applied here, this approach permits today's marriage laws to stand until the democratic processes say they should stand no more. From the founding of the Republic to 2003, every State defined marriage as a relationship between a man and a woman, meaning that the Fourteenth Amendment permits, though it does not require, States to define marriage that way.

The above passage appears in a subsection titled "Original meaning," discussing the Court's view of what "marriage" means traditionally in the United States. Other cases have similarly weighed on the "original meanings" of both the Fourteenth Amendment and the institution of civil marriage.

State v. Jackson, 80 Mo. 175, 176, 178-179 (Mo. 1883):

It may interfere with the taste of negroes who want to marry whites, or whites who wish to intermarry with negroes, but the State has the same right to regulate marriages in this respect that it has to forbid the intermarriage of cousins and other blood relations. If the State desires to preserve the purity of the African blood by prohibiting intermarriages between whites and blacks, we know of no power on earth to prevent such legislation. It is a matter of purely domestic concern. The 14th amendment to the Constitution of the United States, to which, by some, magical power is ascribed, has no such scope as seems to have been accorded to it by the circuit court.
...
Marriage acts similar to the one under consideration were in force in most of the slave-holding states prior to the adoption of the 14th amendment, and their validity was never questioned, no one supposing that there was, prior to that amendment, any provision of the federal constitution with which they were in conflict, and it is only by ascribing to that amendment a force and scope expressly denied it by the Supreme Court of the United States that any ground exists for questioning their validity now. Nor is it one of the natural rights of man to marry whom he may choose. . .The right to regulate marriage, the age at which persons may enter into that relation, the manner in which the rites may be celebrated, and the persons between whom it may be contracted, has been assumed and exercised by every civilized and Christian nation; and the condition of a community, moral, mental and physical, which would tolerate indiscriminate intermarriage for several generations, would demonstrate the wisdom of laws which regulate marriage and forbid the intermarriage of those nearly related in blood. It is stated as a well authenticated fact that if the issue of a black man and a white woman, and a white man and a black woman, intermarry, they cannot possibly have any progeny, and such a fact sufficiently justifies those laws which forbid the intermarriage of blacks and whites, laying out of view other sufficient grounds for such enactments.

Plessy v. Ferguson, 163 U.S. 537, 544, 545, 550 (1896):

The object of the [Fourteenth] [A]mendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced.
...
Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the State.
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So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether [a state law] is a reasonable regulation, and, with respect to this, there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.

Daviess County Board of Education, et al. v. Johnson, 179 Ky. 34, 39 (Ky Ct. App. 1918):

Under our Bill of Rights and the Fourteenth Amendment to the Federal Constitution, it is not necessary that the rights or privileges of the two races shall be identical, but only that they shall be equal.

Harris v. City of Louisville, Buchanan v. Warley, 165 Ky. 559, 570 (Ky. 1915):

The enforced separation of the races alone is not a discrimination or denial of the constitutional guaranty; and if such separation should result in the members of the colored race being restricted to residence in the less desirable portions of the city, they may render those portions more desirable through their own efforts, as the white race has done. Economic equality is not created by statutory declaration nor guaranteed by the Fourteenth Amendment.

Stevens v. United States, 146 F.2d 120, 123 (10th Cir. 1944):

Marriage is a consentient covenant. It is a contract in the sense that it is entered into by agreement of the parties. But it is more than a civil contract between them, subject to their will and pleasure in respect of effects, continuance, or dissolution. It is a domestic relation having to do with the morals and civilization of a people. It is an essential institution in every well organized society. It affects in a vital manner public welfare, and its control and regulation is a matter of domestic concern within each state. A state has power to prescribe by law the age at which persons may enter into marriage, the procedure essential to constitute a valid marriage, the duties and obligations which it creates, and its effects upon the property rights of both parties. And within the range of permissible adoption of policies deemed to be promotive of the welfare of society as well as the individual members thereof, a state is empowered to forbid marriages between persons of African descent and persons of other races or descents. Such a statute does not contravene the Fourteenth Amendment.

Naim v. Naim, 197 Va. 80, 86, 89-90 (Va. 1955):

From the Slaughter-House Cases, to Brown v. Board of Education, and Bolling v. Sharpe, the Supreme Court has made no decision at variance with the holding in the Stevens case. It has on numerous occasions invoked the provisions of the Fourteenth Amendment to invalidate State legislation and decision with respect to political and civil rights, but it has not denied to the States the right to deal with their social and domestic problems and to legislate in regard to the marriage relation. On the contrary, it has been at pains to exclude that relation from the effects of its holdings.
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We are unable to read in the Fourteenth Amendment to the Constitution, or in any other provision of that great document, any words or any intendment which prohibit the State from enacting legislation to preserve the racial integrity of its citizens, or which denies the power of the State to regulate the marriage relation so that it shall not have a mongrel breed of citizens. We find there no requirement that the State shall not legislate to prevent the obliteration of racial pride, but must permit the corruption of blood even though it weaken or destroy the quality of its citizenship. Both sacred and secular history teach that nations and races have better advanced in human progress when they cultivated their own distinctive characteristics and culture and developed their own peculiar genius.
Regulation of the marriage relation is, we think, distinctly one of the rights guaranteed to the States and safeguarded by that bastion of States' rights, somewhat battered perhaps but still a sturdy fortress in our fundamental law, the tenth section of the Bill of Rights, which declares: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

The Sixth Circuit Waiting Game

Last week was a very big week for marriage equality in the United States.

The U.S. Supreme Court begins each new term in October. This year, as the Court convened, three same-sex marriage decisions from three different U.S. Circuit Courts of Appeals were on deck. The states of Oklahoma, Utah, Wisconsin, Indiana, and Virginia submitted petitions for writs of certiorari, asking the Supreme Court to reverse the lower court decisions striking down their gay marriage bans. The general consensus was that the Court would take up at least one of the cases during the term.

General consensus was wrong. The Supreme Court denied certiorari in each of the cases, meaning the rulings of the Fourth, Seventh, and Tenth Circuits would stand as the prevailing law, and all states within those Circuits would be bound to abide by them. This non-action by the Court immediately impacted more than just the five states with rulings. The same-sex marriage bans in twelve total states were either immediately dead or soon to be eliminated.

Then, in the same week, the Ninth Circuit Court of Appeals affirmed the demise of bans in Nevada and Idaho (and spelled the end for the bans in Montana, Arizona, and Alaska). As of the time of this writing, same-sex marriage is fully legal in 29 states and D.C., with nearly 60% of all Americans living in states with marriage equality.

This incredible momentum toward equality isn't the entire story, however. The Supreme Court's unwillingness to reconsider any same-sex marriage cases to this point doesn't mean they won't in the future. As Justice Ruth Bader Ginsburg suggested in a recent interview, if one of the remaining Circuits left to rule on the issue should uphold a state's ban, a "Circuit split" would be created and the Court would likely change its tune.

In some Circuits, the issue is dead without a fight. The First, Second, and Third Circuits consist of states that have already legalized same-sex marriage before the United States v. Windsor opinion. The Fourth, Seventh, Ninth, and Tenth Circuits have ruled unanimously against the bans.

But the Fifth Circuit (Texas, Louisiana, Mississippi), the Sixth Circuit (Kentucky, Ohio, Michigan, Tennessee), and the Eleventh Circuit (Florida, Georgia, Alabama) each have cases pending before them. The Sixth Circuit is the farthest along, having completed the briefing process and having heard oral arguments in cases from each of its states on August 6. The Fifth and Eleventh Circuits are still in the briefing stage.

The Sixth Circuit, before which are Kentucky's two cases (Bourke v. Beshear and Love v. Beshear), is considered a bit of a wild card. The three-judge panel was widely considered conservative (Judges Jeffrey Sutton and Deborah Cook were appointed by George W. Bush) with just one Democrat-appointed member, Senior Judge Martha Craig Daughtrey.

But assumptions aside, the oral arguments in the Sixth Circuit were extremely civil, without the sharp contrasts in opinions among the judges evident in the Fourth and Tenth Circuits. Judge Cook was mostly silent. Judge Daughtrey was highly critical of the states defending the bans. But Judge Sutton, the lead judge on the panel and considered by most as being (or at least having been) a top conservative prospect for a Supreme Court nomination, balanced his questions between both sides. He suggested to the same-sex marriage plaintiffs that the political process could be a better route for equality rather than the court system, but acknowledged the long history of discrimination they suffered and was unsympathetic toward state arguments about tradition and legal confusion.

If the Sixth Circuit rules as all of its sister Circuits so far have, then same-sex marriage could almost immediately become legal in four more states (including Kentucky). But if Judge Sutton and Judge Cook are inclined to uphold the state bans, then one or more of the cases from that Circuit could be headed to the U.S. Supreme Court to decide the issue once and for all.

And so far, all signs seem to indicate that the Supreme Court will affirm the court decisions striking down the same-sex marriage bans. If they're willing to let the rulings of the Fourth, Seventh, Ninth, and Tenth Circuits stand, bringing marriage equality to a dozen more states, it seems quite unlikely that they would snatch the licenses out of the hands of newly-married couples all across the country at some point later on.

As a member of the legal team in the Kentucky marriage cases, I often get asked by friends and media if I know when the Sixth Circuit will rule. Of course I do not. At the end of oral arguments in August, Judge Sutton said only that a ruling would come "soon," but a lot has changed since then. A ruling could come any day now.

Of course I hope for a ruling in favor of marriage equality. My clients, and same-sex couples like them from Michigan to Tennessee, have waited long enough to enjoy the same rights opposite-sex couples take for granted.

The Unquestioned Power of the State

While researching Kentucky case law for an article I'm writing, I stumbled upon this legal gem from yesteryear, the sinister luster of which has not yet been totally lost. Similar arguments are still made by the various states - including Kentucky - opposed to same-sex marriage. Overt racism has been abandoned, but the appeals to state political discretion and the importance of procreation remain:

The question is, is it a fair exercise of the police power to prohibit the teaching of the white and negro races together? Is it a fair exercise of the power to restrain the two races from voluntarily associating together in a private school, to acquire a scholastic education? The mingling of the blood of the white and negro races by interbreeding is deemed by the political department of our State government as being hurtful to the welfare of society. Marriage by members of the one race with those of the other is prohibited by statute. Sections 2097, 2098, 2111, 2114, Ky. St. 1903. It is admitted freely in argument that the subject of marriage is one of the very first importance to society; that it may be regulated by law even as among members of the same race. Inbreeding is known to lower the mental and physical vigor of the offspring. So incestuous marriages are prohibited. Others not incestuous, but involving the probable effect upon the vitality of the offspring, are prohibited also, as marriages by idiots. Still other inhibitions, such as age, and so forth, are imposed, all of which look to the well-being of the future generations. No one questions the validity of such statutes, enacted as they confessedly are, under the police power of the State. Upon the same considerations this same power has been exercised to prohibit the intermarriage of the two races. The result of such marriage would be to destroy the purity of blood and identity of each. It would detract from whatever characteristic force pertained to either.

Berea College v. Commonwealth, 123 Ky. 209, 218-219 (Ky. 1906).

This case, which would now be considered a highly conservative opinion (both in its racism and in its reliance upon federalist principles), includes this passage, which seems not at all consistent with our contemporary conceptions of certain conservative ideologies:

Individual liberty of action or right must give away to the greater right of the collective people in the assertion of a well defined policy, designed and intended for the general welfare.

Id. at 211.

The well-defined policy designed and intended for the general welfare at issue, of course, was racial segregation.

One more heinous quote for the road:

The separation of the white and black races upon the surface of the globe is a fact equally apparent. Why this is so, it is not necessary to speculate; but the fact of a distribution of men by race and color is as visible in the providential arrangement of the earth as that of heat and cold. The natural separation of the races is therefore an undeniable fact, and all social organizations which lead to their amalgamation are repugnant to the law of nature.

Id. at 225.