by Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service, George Washington University Law
*This piece originally appeared on The Huffington Post.
On October 6, 2014, the Supreme Court declined to hear seven cases in which federal courts of appeals had found bans on same-sex marriages to be unconstitutional. One month later, a divided court of appeals for the Sixth Circuit, in an opinion written by Judge Jeffrey Sutton, upheld the bans in Michigan, Ohio, Tennessee, & Kentucky. All four groups of plaintiffs have asked the Supreme Court to review that decision, and the Court is likely to decide whether to take up those cases at its conference on January 9, 2015. There are a number of legal issues in the case, but the keys to the ruling below are the two reasons Judge Sutton gave to support the ban, which this essay argues are indefensible under whatever degree of scrutiny the Court applies.
The majority opinion of Circuit Judge Jeffrey Sutton upholding bans in four states on same-sex marriage has an aura of reasonableness to it, but when it comes to offering real reasons to justify the bans, it cannot withstand analysis. According to Sutton, there are two reasons why the bans are constitutional: (1) they encourage procreation in marriage by opposite-sex couples, and (2) they uphold traditional marriage, while allowing for future change.
There are three undisputed facts that demonstrate conclusively that those reasons cannot sustain the bans: (1) most of the benefits of marriage for opposite-sex couples are unrelated to encouraging procreation; (2) the laws also preclude civil unions or any other arrangement that confers any of the benefits of marriage on same-sex couples; and (3) the Ohio ban was applied to deny the surviving member of a marriage performed out of state the right to include on the death certificate of his husband the indisputable fact that he was "married."