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August 6 in the Sixth Circuit

July 28, 2014

On Wednesday, August 6, at 1:00 p.m., a three-judge panel of the federal Court of Appeals for the Sixth Circuit will convene in the Sixth Floor West courtroom of the Potter Stewart Courthouse in Cincinnati. The judges will hear marriage equality arguments in six cases from all four states within the Sixth Circuit – Kentucky, Michigan, Ohio and Tennessee. The judges on the panel are Martha Craig Daughtrey, a Clinton appointee, and Jeffrey Sutton and Deborah Cook, both George W. Bush appointees.

None of the three judges are especially well known, which is par for federal judges below the Supreme Court. Judge Daughtrey came to the federal bench from the Tennessee courts, where she was the first woman to serve on the Tennessee Supreme Court. She appears to have a somewhat liberal background, and in fact some Republicans opposed her nomination to the federal bench because they regarded her as a death penalty opponent.

Judge Sutton came from private practice in Ohio. He was a controversial nominee, confirmed by a close Senate vote in 2003. He has made something of a name for himself by writing conservative majority opinions for the court when it sits “en banc” – meaning the entire court, not just a three-judge panel. On the other hand, Judge Sutton was the first Republican-appointed judge to vote to uphold the Affordable Care Act’s individual mandate.

Judge Cook came from the Ohio judiciary, where she had a reputation for siding with corporate interests. Her federal judicial career has been largely free of controversial decisions. One exception was an interesting Fourth Amendment case in which she sided for the defendant and ruled for suppression of evidence seized from the defendant’s illegally rented hotel room.

I’ve previously observed that the party of appointment of a federal judge has not been a useful predictor of the judge’s vote in a marriage equality case after United States v. Windsor, when the Supreme Court struck down the Defense of Marriage Act. The pro-equality organization Freedom to Marry counts 28 marriage equality wins and no losses since Windsor.

Still, a three-judge panel with two George W. Bush appointees on it, from an appeals court dominated by conservatives, will test that theory.

The Sixth Circuit Court of Appeals will be the third court of appeals to hear marriage post-Windsor equality cases.  The Tenth Circuit struck down same-sex marriage bans in Oklahoma and Utah this summer, staying both rulings pending Supreme Court review. The Fourth Circuit heard arguments in a challenge to Virginia’s same-sex marriage ban in May, but hasn’t ruled yet.

The Seventh Circuit will hear arguments on August 13, in cases coming from Wisconsin and Indiana. And the Ninth Circuit has arguments scheduled for September 8 in cases from Idaho and Nevada, plus a technical appeal in a case from Hawaii, which legislatively adopted marriage equality last year.

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UPDATE:  Not two hours after I posted this, the Fourth Circuit issued a 2 – 1 ruling against Virginia’s same-sex marriage ban. As the Tenth Circuit had before it, the Fourth Circuit majority found that restrictions on the fundamental constitutional right to marry are subject to “strict scrutiny,” the most demanding standard of constitutional review; and concluded that a ban on same-sex marriage cannot survive that standard.

The majority opinion was written by Judge Henry Floyd, an Obama appointee. He was joined by Judge Roger Gregory, a George W. Bush appointee. In dissent was Judge Paul Niemeyer, a George H. W. Bush appointee. Two federal courts of appeals have now spoken, and both have ruled in favor of marriage equality.

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