Attorneys in Tennessee’s same-sex marriage case expressed disappointment Thursday in the decision by a federal appeals panel to uphold bans in four states, including here.
The decision from the 6th U.S. Circuit Court of Appeals breaks ranks with other courts that have struck down anti-gay marriage laws — setting up the prospect of a Supreme Court review.
“It is completely inconsistent with dozens of federal court decisions … that have ruled over the past year that same-sex couples and their children are entitled to the same dignity and legal protection as other families,” said Regina Lambert, attorney for the Knoxville plaintiffs in the case, in a statement to the News Sentinel.
“We are hopeful that the U.S. Supreme Court ultimately resolve(s) this matter and rule that equal protection requires Tennessee, and every state, to treat same-sex couples and their children with the same respect as other families,” she said.
Fellow attorney on the case, William Harbison, who is based in Nashville and argued before the appeals panel in Cincinnati on Aug. 6, said he would consult with his clients before determining whether to appeal to the Supreme Court.
Harbison, who was reached by phone shortly after the ruling was released at about 4:30 p.m., said he was still reviewing the 42-page opinion and declined to comment further.
Republican Lt. Gov. Ron Ramsey, meanwhile, praised the ruling in a post on his Facebook page on Thursday.
“Today’s ruling by the 6th Circuit Court of Appeals explicitly affirms our state’s right to define marriage,” he wrote.
The decision, which also ruled on bans in Ohio, Kentucky and Michigan, was a 2-1 split.
Circuit Judge Jeffrey Sutton wrote the majority opinion for himself and fellow President George W. Bush appointee Deborah Cook. Martha Craig Daughtrey, a President Bill Clinton appointee and former Tennessee Supreme Court justice, dissented.
Sutton’s opinion concluded that states have the right to set rules for marriage and that such change as expanding a definition of marriage that dates “back to the earliest days of human history” is better done through political processes.
“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,” Sutton wrote, adding that it’s better to have change “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.”
The Tennessee case focused on plaintiffs — including Knoxville veterinarians Val Tanco and Sophy Jesty — who were residents in other states when they married and moved to Tennessee because of job offers or military orders.
The three couples all want the state to recognize their unions, and Tanco and Jesty sought to have both mothers’ names on their infant daughter’s birth certificate.
Attorneys could seek a review of the panel’s decision by the full 6th Circuit, but with mostly Republican-appointed judges they likely will try to move the issue directly on to the Supreme Court for a definitive ruling.
In her scathing 21-page dissent, Daughtrey suggested that may have been the goal of Sutton and Cook in their ruling.
“Because the correct result is so obvious, one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split,” she wrote, saying getting the case to the Supreme Court would put “an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threaten.”
In October, the Supreme Court surprisingly turned away appeals from five states seeking to uphold their marriage bans, even with the gay couples who won in the lower courts joining with the states to ask for high court review.
Justice Ruth Bader Ginsburg explained in the weeks following the court’s denial of those appeals that the lack of a split in the appellate courts made Supreme Court review of the issue unnecessary.
Thursday’s ruling out of Cincinnati changes that dynamic, and the big question now is whether an appeal can be ready for the justices in time for consideration this term. Generally, that means the court would have to decide by mid-January whether to hear the case in time for a decision in June. Otherwise, the case would be pushed back to the following term and probably not decided until June 2016.
In their home last month, Tanco and Jesty said they knew there was a possibility their case could land before the Supreme Court and ultimately be part of a historic decision.
“I thought our case was just going to be, well, one of many,” said Tanco. “I never anticipated that we would stand out,” she said. “Everybody has these cases now in pretty much every state, so I just thought, well, OK, we’ll be one more in the tide.”
Still, at the time, the couple insisted the best-case scenario would be a decision in their favor from the 6th Circuit, which would allow them to move forward as a family with their 6-month-old daughter.
Thursday’s decision followed more than 20 court victories for supporters of same-sex marriage since the Supreme Court struck down part of the federal Defense of Marriage Act last year. A federal judge in Louisiana recently upheld that state’s ban, but four U.S. appeals courts ruled against state bans.
The issue appears likely to return to the Supreme Court so the nation’s highest court can settle whether states can ban gay marriage or gay and lesbian couples have a fundamental right to marry under the U.S. Constitution. Thirty-two states recently asked the Supreme Court to settle the issue once and for all.
When the high court on Oct. 6 unexpectedly turned away appeals from five states seeking to prohibit gay and lesbian unions, its order effectively made gay marriage legal in 30 states. The San Francisco-based 9th Circuit Court of Appeals the next day overturned same-sex marriage bans in Idaho and Nevada, the fourth federal appeals court to rule against state bans.
Ginsburg told a Minnesota audience the 6th Circuit’s then-pending ruling would likely influence the high court’s timing, adding “some urgency” if it allowed same-sex marriage bans to stand.
Before the 9th’s Oct. 7 ruling, three other appellate courts, the 10th Circuit in Denver, the 4th Circuit in Richmond, Virginia, and the 7th Circuit in Chicago, overturned statewide gay marriage bans in Wisconsin, Indiana, Oklahoma, Utah and Virginia over the summer, ruling that they were unconstitutional.
During the Aug. 6 arguments, it was apparent that Sutton would be the deciding vote, with the two other judges clearly on opposite sides of the debate.
Sutton vigorously questioned each side’s attorneys, though he repeatedly expressed deep skepticism that the courts were the best place to legalize gay marriage, saying that the way to win Americans’ hearts and minds is to wait until they’re ready to vote for it.
“I would have thought the best way to get respect and dignity is through the democratic process,” Sutton said at the time. “Nothing happens as quickly as we’d like it.”
Michigan’s and Kentucky’s cases stem from rulings striking down each state’s gay marriage bans. Ohio’s two cases deal only with the state’s recognition of out-of-state gay marriages.
The Associated Press contributed to this report.