Sixth Circuit Upholds State-Law Gay Marriage Bans
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Short Version
1. No "heightened scrutiny" is appropriate.
2. "Rational basis" scrutiny does not require - or even permit - overturning state-enacted policy decisions like this one (favoring same-sex marriage/not recognizing same-sex marriage).
3. "Good ideas" to some are not "good ideas" to all and do not control Constitutional analysis.
4. One state can make policy to honor "love" while another state can make policy to encourage sex/procreation/staying together and rearing children. Neither are irrational so the courts can't bust either.
1. No "heightened scrutiny" is appropriate.
2. "Rational basis" scrutiny does not require - or even permit - overturning state-enacted policy decisions like this one (favoring same-sex marriage/not recognizing same-sex marriage).
3. "Good ideas" to some are not "good ideas" to all and do not control Constitutional analysis.
4. One state can make policy to honor "love" while another state can make policy to encourage sex/procreation/staying together and rearing children. Neither are irrational so the courts can't bust either.
Here's a thought.
I'm not sure we need to go over the battle over rational basis vs. heightened scrutiny again, since it's been done so many times. I am willing to argue that marriage bans are unconstitutional even under rational basis review, if someone wants to, but I'm going to throw out something completely unrelated:
I think the court's take on when it is and is not okay for an appellate court to "ignore" a Supreme Court decision is mistaken. The court accepts at least two cases where a lower court can ignore the decision of a higher court which virtually everyone agrees with:
1. If the higher court itself has already explicitly overturned or limited the previous precedent.
2. If the facts of the case at bar can be at all distinguished from the previous precedent.
I don't think those are controversial. But the court also explicitly rejects another possible case where it is appropriate to consider ignoring precedent:
3. If other developments in the law put into question the continued validity of the established precedent or suggest that it has been implicitly overturned.
The court says that, because Windsor did not explicitly overrule Baker, the court is still bound by Baker. The court cites Rodriguez (which itself was probably incorrect, but that's irrelevant here) for defense on this point: "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions."
My problem with the 6th Circuit's application of Rodriguez is this: it requires such a narrow understanding of what constitutes a single "line of decisions," that it makes it effectively impossible for a lower court to ever question precedent, even if it has already been put in doubt by SCOTUS. I don't think that's an accident. I think the 6th Circuit reads Rodriguez as saying exactly that. I do not think the Rodriguez Court meant to go quite that far (although they clearly did mean for the rule to be expansive)*. By that, I mean this: Windsor, Romer, and Lawrence can and should be considered within the same line of decisions as Baker for purposes of the Rodriguez test. Otherwise, SCOTUS's own rulings will only ever have the most narrow application logically possible.
Now, I understand that my opinion on this can be viewed by some as dangerous. But, as Scalia is wont to do, I'll defend my point by illustrating the natural consequences of the 6th Court's reading. In practice, SCOTUS will generally hear cases on issues concerning which the Circuits are split, or on matters of first impression which raise a significant question of federal law. If the lower courts follow the 6th Circuit's reading of Rodriguez, then it's extremely unlikely SCOTUS will ever get around to revisiting any of its decisions, unless they change their habits with regard to which appeals they accept. In fact, a very strict understanding of this principle would leave litigants and attorneys open to sanctions for even trying to question precedent on appeal.
Continuing, consider a second. When SCOTUS develops new legal principles, whether or not it explicitly overturns a previous case, it does, by necessity, change at least slightly the reasoning in at least hundreds, likely thousands of previous decisions. Even if the Court did not explicitly reject Baker, it's impossible to read Romer-Lawrence-Windsor without noticing that it changes how Baker would be considered. The Court simply can't be expected to come up with an exhaustive list of every single set of facts that is now open to revisiting because of a new development in the law. That is precisely the type of function the Appellate courts should provide.
goat
* Consider this. If the Court had intended Rodriguez to be read as the 6th Circuit does, then the Court should have heard the appeals of the various other states in Circuits where marriage bans were struck down, as those Circuits would have been clearly and unquestioningly erring.
This post was edited on 11/7 3:26 PM by TheOriginalHappyGoat
I'm not sure we need to go over the battle over rational basis vs. heightened scrutiny again, since it's been done so many times. I am willing to argue that marriage bans are unconstitutional even under rational basis review, if someone wants to, but I'm going to throw out something completely unrelated:
I think the court's take on when it is and is not okay for an appellate court to "ignore" a Supreme Court decision is mistaken. The court accepts at least two cases where a lower court can ignore the decision of a higher court which virtually everyone agrees with:
1. If the higher court itself has already explicitly overturned or limited the previous precedent.
2. If the facts of the case at bar can be at all distinguished from the previous precedent.
I don't think those are controversial. But the court also explicitly rejects another possible case where it is appropriate to consider ignoring precedent:
3. If other developments in the law put into question the continued validity of the established precedent or suggest that it has been implicitly overturned.
The court says that, because Windsor did not explicitly overrule Baker, the court is still bound by Baker. The court cites Rodriguez (which itself was probably incorrect, but that's irrelevant here) for defense on this point: "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions."
My problem with the 6th Circuit's application of Rodriguez is this: it requires such a narrow understanding of what constitutes a single "line of decisions," that it makes it effectively impossible for a lower court to ever question precedent, even if it has already been put in doubt by SCOTUS. I don't think that's an accident. I think the 6th Circuit reads Rodriguez as saying exactly that. I do not think the Rodriguez Court meant to go quite that far (although they clearly did mean for the rule to be expansive)*. By that, I mean this: Windsor, Romer, and Lawrence can and should be considered within the same line of decisions as Baker for purposes of the Rodriguez test. Otherwise, SCOTUS's own rulings will only ever have the most narrow application logically possible.
Now, I understand that my opinion on this can be viewed by some as dangerous. But, as Scalia is wont to do, I'll defend my point by illustrating the natural consequences of the 6th Court's reading. In practice, SCOTUS will generally hear cases on issues concerning which the Circuits are split, or on matters of first impression which raise a significant question of federal law. If the lower courts follow the 6th Circuit's reading of Rodriguez, then it's extremely unlikely SCOTUS will ever get around to revisiting any of its decisions, unless they change their habits with regard to which appeals they accept. In fact, a very strict understanding of this principle would leave litigants and attorneys open to sanctions for even trying to question precedent on appeal.
Continuing, consider a second. When SCOTUS develops new legal principles, whether or not it explicitly overturns a previous case, it does, by necessity, change at least slightly the reasoning in at least hundreds, likely thousands of previous decisions. Even if the Court did not explicitly reject Baker, it's impossible to read Romer-Lawrence-Windsor without noticing that it changes how Baker would be considered. The Court simply can't be expected to come up with an exhaustive list of every single set of facts that is now open to revisiting because of a new development in the law. That is precisely the type of function the Appellate courts should provide.
goat
* Consider this. If the Court had intended Rodriguez to be read as the 6th Circuit does, then the Court should have heard the appeals of the various other states in Circuits where marriage bans were struck down, as those Circuits would have been clearly and unquestioningly erring.
This post was edited on 11/7 3:26 PM by TheOriginalHappyGoat
here's when I quibble over a footnote
Footnotes*, ah the lone lonely footnote. You said:
* Consider this. If the Court had intended Rodriguez to be read as the 6th Circuit does, then the Court should have heard the appeals of the various other states in Circuits where marriage bans were struck down, as those Circuits would have been clearly and unquestioningly erring.
I disagree. The Roberts Court has been very careful in which cases they take and do not take, for a variety of reasons. I think you go too far in concluding that, if the Court had intended Rodriguez to be read like the 6th Circuit does, they should have taken the other cases. I think you are making too many leaps there. I think Rodriguez is one of those cases that is really a tool to a result, rather than an immutable rule that appellate courts must always follow or else. More importantly, cert is almost always granted for a reason other than SCOTUS to instruct appellate courts over how to apply SCOTUS precedent. On top of that, as you certainly know, when dealing with a significant issue like this SCOTUS is always concerned over making sure that they take the right case to address the issue in the way they want to address it--and, under Roberts, with the goal of tying to speak unanimously in their decision.
That's all I got. Back to my 100 page letter with 40+ footnotes.
*Footnotes can be very important. Especially to take more subtle digs--or pokes with sharper sticks. Personally, those are my favorite way of using footnotes. Didn't they teach you that at UT?
Footnotes*, ah the lone lonely footnote. You said:
* Consider this. If the Court had intended Rodriguez to be read as the 6th Circuit does, then the Court should have heard the appeals of the various other states in Circuits where marriage bans were struck down, as those Circuits would have been clearly and unquestioningly erring.
I disagree. The Roberts Court has been very careful in which cases they take and do not take, for a variety of reasons. I think you go too far in concluding that, if the Court had intended Rodriguez to be read like the 6th Circuit does, they should have taken the other cases. I think you are making too many leaps there. I think Rodriguez is one of those cases that is really a tool to a result, rather than an immutable rule that appellate courts must always follow or else. More importantly, cert is almost always granted for a reason other than SCOTUS to instruct appellate courts over how to apply SCOTUS precedent. On top of that, as you certainly know, when dealing with a significant issue like this SCOTUS is always concerned over making sure that they take the right case to address the issue in the way they want to address it--and, under Roberts, with the goal of tying to speak unanimously in their decision.
That's all I got. Back to my 100 page letter with 40+ footnotes.
*Footnotes can be very important. Especially to take more subtle digs--or pokes with sharper sticks. Personally, those are my favorite way of using footnotes. Didn't they teach you that at UT?
Here's where I agree with you and highlight something
You might be right that I extended myself too far with that bit. I only reply to point out that you said:
"I think Rodriguez is one of those cases that is really a tool to a result, rather than an immutable rule that appellate courts must always follow or else."
Can I conclude from that statement that you agree with me that the 6th Circuit did in fact read Rodriguez incorrectly?
goat
You might be right that I extended myself too far with that bit. I only reply to point out that you said:
"I think Rodriguez is one of those cases that is really a tool to a result, rather than an immutable rule that appellate courts must always follow or else."
Can I conclude from that statement that you agree with me that the 6th Circuit did in fact read Rodriguez incorrectly?
goat
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