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BREAKING! Sixth Circuit lets stand gay-marriage bans in Michigan, Ohio, Kentucky, Tennessee

CINCINNATI, Ohio -- For the first time at the appellate court level, gay marriage bans have been upheld in the states of Michigan, Ohio, Kentucky and Tennessee, setting up a potential landmark ruling at the U.S. Supreme Court.

The Sixth Circuit Court of Appeals, based in Cincinnati, broke with favorable gay-marriage rulings in the Ninth Circuit, Tenth Circuit and Fourth Circuit. SDGLN.com watched the oral hearings via livestream, and reported that one judge seemed inclined to support the ban, one judge didn't and the third judge -- a Republican appointee -- appeared conflicted.

To read the ruling, click HERE.

The ruling will no doubt be appealed to the U.S. Supreme Court, which has been reluctant to take up the issue since Windsor and Proposition 8. But now that there finally is a split in appellate court rulings, the high court justices will likely have their hand forced. So they could likely decide three things: 1) It's a state's issue, and they will allow some states to be discriminatory; 2) Marriage is a constitutional right for everybody; 3) Marriage is not a constitutional right, and rule against gay marriage.

The Human Rights Campaign was quick to blast the ruling, issuing the following statement:

Today the U.S. Court of Appeals for the Sixth Circuit overturned lower court rulings that struck down Kentucky, Michigan, Ohio and Tennessee bans on marriage equality. Until today, no state marriage ban had survived a federal circuit court ruling. What’s more, the Supreme Court of the United States issued an order last month allowing the pro-marriage equality rulings from the Fourth, Seventh and Tenth Circuits to stand, immediately making marriage for same-sex couples possible in five new states – with many more following soon after. The decision today by the Sixth Circuit creates a circuit court split, which increases the likelihood of the Supreme Court taking up the issue in the near future. In response to today’s ruling, Human Rights Campaign (HRC) president
Chad Griffin issued the following statement:

“The legacies of Judges Deborah Cook and Jeffrey Sutton will forever be cemented on the wrong side of history. Today the Sixth Circuit stood in the way of a path constructed by two dozen federal court rulings over the last year – a path that inevitably leads to nationwide marriage equality. Gay and lesbian couples in Kentucky, Michigan, Ohio and Tennessee are just as deserving of marriage equality as the rest of America. Now, more than ever before, the Supreme Court of the United States must take up the issue and decide once and for all whether the Constitution allows for such blatant discrimination. We believe that justice and equality will prevail.”

Today’s ruling was an attempt by the two judges to appeal to Supreme Court Justice Anthony Kennedy’s prior opinions regarding the validity of state constitutional amendments, specifically his opinion in Schuette v. Coalition to Defend Affirmative Action.

The plaintiffs now have the option to request an appeal before the full bench of the Sixth Circuit, known as en banc. The Sixth Circuit decides whether or not to grant that request. If denied, the plaintiffs may appeal today’s ruling to the Supreme Court of the United States. The plaintiffs may also bypass an en banc session and appeal directly to the Supreme Court.

Evan Wolfson, president of Freedom to Marry, also condemned the ruling.

“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. This anomalous ruling won't stand the test of time or appeal. But with discrimination still burdening too many families, and now with this split in the circuits, Freedom to Marry calls on the Supreme Court to swiftly take these cases, affirm the freedom to marry, and bring national resolution once and for all. American couples and their families should no longer be forced to fight court by court, state by state, day by day for the freedom and dignity that our Constitution promises.”

Chase Strangio, staff attorney in the ACLU Lesbian Gay Bisexual and Transgender Project, issued the following statement:

"This decision is an outlier that’s incompatible with the 50 other rulings that uphold fairness for all families, as well as with the Supreme Court’s decision to let marriage equality rulings stand in Indiana, Wisconsin, Utah, Oklahoma, and Virginia. It is shameful and wrong that John Arthur’s death certificate may have to be revised to list him as single and erase his husband’s name as his surviving spouse. We believe it’s wholly unconstitutional to deny same sex couples and their families access to the rights and respect that all other families receive. We will be filing for Supreme Court review right away and hope that through this deeply disappointing ruling we will be able to bring a uniform rule of equality to the entire country."

Lambda Legal issues this statement:

Today the Sixth Circuit Court of Appeals upheld as constitutional bans on marriage rights for same-sex couples in Ohio, Michigan, Kentucky and Tennessee, becoming the first federal circuit court after the Supreme Court’s watershed 2013 Windsor ruling to uphold such bans and departing from recent decisions from the 4th, 7th, 9th and 10th Circuits. The decision applies to six lawsuits from all four states; Lambda Legal joined the case Henry v. Himes, filed by Gerhardstein & Branch, a federal lawsuit seeking to compel the State of Ohio to recognize the marriages of same-sex couples and issue accurate birth certificates listing both parents for the Ohio-born children of married same-sex couples.

“We’re extremely disappointed for the families in these four states, but this decision highlights the need for the U. S. Supreme Court to right this injustice. While a tidal wave of courts around the nation have struck down marriage bans, this decision leaves Sixth Circuit states in a backwater and, worst of all, injures same-sex couples and their children,” said Susan Sommer, Director of Constitutional Litigation for Lambda Legal. “Depriving same-sex couples and their families of the protections and dignity that come with marriage is flat out unconstitutional, and Lambda Legal vows to continue working until justice is won.”

“Our clients and their children need the full protections of marriage, and they need them now,” said Al Gerhardstein, Attorney for Gerhardstein & Branch. “The Sixth Circuit’s refusal to recognize marriages of same-sex couples relegates them to a second-class status for no legitimate reason. We will continue to fight for love and commitment, and won’t stop until the law recognizes the importance of our families’ marriages and their need for the security that comes from accurate birth certificates.”

Henry v. Himes was filed in February 2014. Plaintiffs include Brittani Henry and Brittni Rogers, a married same-sex couple and the parents of a baby boy born in May 2014; Georgia and Pamela Yorksmith, who married in California in 2008 and have a three-year-old son born in Ohio and another baby born in June 2014; Kelly Noe and Kelly McCracken, married in Massachusetts in 2011, with a son born in June 2014 in Ohio; and Joseph J. Vitale and Robert Talmas, a married same-sex couple living in New York City and the parents of an adopted son born in Ohio.

All plaintiff couples are seeking recognition for their marriages and accurate birth certificates listing both parents. The Ohio Department of Health, the agency charged with issuing birth certificates whose Director is the Defendant in the case, has refused to issue or amend birth certificates for same-sex parents.

This case, along with Obergefell v. Himes, also on appeal, demonstrates the importance of marriage to families through the life span, from the birth of their children through the death of a spouse and beyond. In the Obergefell case, in which Gerhardstein is lead counsel, the state appealed a federal court ruling 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, a federal district court declared in the Henry case that Ohio's ban on recognizing out-of-state marriages of same-sex couples is unconstitutional in all respects. The opinion further extended "heightened scrutiny" - a high level of judicial review - to Ohio’s discrimination against same-sex married couples and their children. The Court also held that the state violates the Full Faith and Credit Clause of the Constitution by denying recognition to out-of-state adoption decrees of same-sex couples and by refusing to amend the birth certificates of their Ohio-born adopted children. At the same time, the court stayed its own decision for all but the plaintiff families until the conclusion of the court proceedings.

“We only want what’s best for our son, and he shouldn’t have any unnecessary and discriminatory obstacles placed in his way,” said Brittani Henry. “We are both his mothers and his birth certificate should show that he is loved and parented by two caring, committed women.”

Read more about the case on our case page HERE.

In August, the Sixth Circuit Court of Appeals also heard arguments from five more cases challenging discriminatory marriage laws in every state in the Circuit, including Obergefell v. Himes, also challenging Ohio’s marriage recognition ban, and cases from Michigan, Kentucky and Tennessee. Read our FAQ on the cases heard that day HERE.

Susan Sommer, Director of Constitutional Litigation for Lambda Legal, along with Lambda Legal attorneys Paul Castillo and M. Currey Cook, join Al Gerhardstein, Jennifer Branch and Jaci Gonzales Martin of Gerhardstein & Branch, and Ellen Essig and Lisa Meeks of Cincinnati.