In 1996, the Tennessee legislature passed Tennessee Code § 36-3-113(a), which provides the only legally recognized marital contract are those made between one man and one woman. In 2006, 80% of Tennessee voters voted to add Article XI, § 18 to Tennessee’s Constitution, which amendment reaffirms the definition of marriage as being between one man and one woman and provides that same-sex marriages from other states will not be recognized in Tennessee. Without explanation, the amendment says same-sex marriages are “contrary to the public policy of this state.”

Three Tennessee same-sex couples, all in lengthy, committed relationships, sued to challenge the constitutionality of Tennessee’s ban on same-sex marriage. The Federal District Court in Nashville concluded Tennessee’s ban was likely unconstitutional and, therefore, preliminarily enjoined the law. Tennessee appealed. The appeal was consolidated with similar cases from the other states within the Sixth Circuit, i.e., Michigan, Ohio, and Kentucky.

Four other federal appeals courts — the Fourth Circuit, Seventh Circuit, Ninth Circuit, and Tenth Circuit — have issued opinions in similar cases arising out of other states, all of which conclude that bans on same-sex marriage are unconstitutional. The U.S. Supreme Court declined to hear those appeals (except for the Ninth Circuit’s opinion, which hadn’t been issued when the Supreme Court denied certiorari) because there was no difference of opinion among the lower courts. Until last week, the only federal court to have upheld a ban on same-sex marriage was a District Court in Louisiana. That changed last week.

Last week a divided panel of the Sixth Circuit issued an opinion upholding Tennessee’s ban on same-sex marriage, becoming the first Court of Appeals to do so. The 64 page opinion covers a lot of constitutional ground and contains a lot of nuanced arguments. I will not attempt to summarize them here. Instead, I will attempt to merely scratch the surface on the main arguments I think will be of interest to those interested in this particular legal question.

I urge my readers to read the Sixth Circuit’s opinion for themselves. It can be found here. Likewise, here are links to the opinions from the Fourth Circuit, Seventh Circuit, Ninth Circuit, and Tenth Circuit.

Judge Sutton writes the majority opinion, which is joined by Judge Cook, both of whom were appointed by President George W. Bush.

Rational basis review. Put very simply (perhaps too much so), to satisfy Due Process or Equal Protection analysis, a law must rationally advance a legitimate government interest. To support its finding that the government has a legitimate interest in defining marriage in order to regulate sex, the Majority writes:

It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children….

[A] reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them….

People may not need the government’s encouragement to have sex. And they may not need the government’s encouragement to propagate the species. They may well need the government’s encouragement to create and maintain stable relationships within which children may flourish….

By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for the purposes of rearing offspring….

How could it be irrational for a State to decide that the foundation of its domestic-relations law will be its definition of marriage, not somebody else’s? … How could it be irrational for a State to apply its definition of marriage to a couple in whose marital status the State as a sovereign has a rightful and legitimate concern?

The other rational basis found by the Majority is that a state “might wish to wait and see” how same-sex marriages have worked in other states before changing the law to allow it.

Other arguments. The Majority addresses other constitutional arguments, including animus, the fundamental right to marry, etc. I think they are less important than the Due Process and Equal Protection arguments so I will not discuss them here. Feel free to read the opinion to see those arguments.

The Majority raises the specter of polygamous marriage, writing: “If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage.”

The Majority also references principles of federalism as being supportive of a “lenient review” of state marriage definitions.

Notably, the Majority writes at length about the policy reasons supporting its belief that same-sex marriage is an issue best left to voters, not courts:

Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in the court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.

Dissent: Judge Daughtrey (from Tennessee), appointed by President Clinton, writes a dissenting opinion that has been described by legal commentators in the media as “epic” and “sharp tongued.” The dissent begins as follows:

The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment. Instead, the majority sets up a false premise — that the question before us is “who should decide?” — and leads us through a largely irrelevant discourse on democracy and federalism….

For although my colleagues in the majority pay lip service to marriage as an institution conceived for the purpose of providing a stable family unit “within which children may flourish,” they ignore the destabilizing effect of his absence in the homes of tens of thousands of same-sex parents throughout the four states of the Sixth Circuit….

How ironic that irresponsible, unmarried, opposite sex couples in the Sixth Circuit who produce unwanted offspring must be “channeled” into marriage and thus rewarded with its many psychological and financial benefits, while same-sex couples who become model parents are punished for their responsible behavior of being denied the right to marry.

The Dissent says the arguments asserted by the Majority have already been thoroughly refuted by the four other Courts of Appeals in their opinions such that the rejoinder to those arguments need not be restated in detail. In fact, the Dissent goes so far as to accuse the Majority of effectively manufacturing its disagreement for the purpose of soliciting Supreme Court review:

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 regarding the legality of same-sex marriage that could prompt a grant of certiorari by the Supreme Court and an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws and threatens.

Nonetheless, the Dissent felt obligated to respond briefly to the Majority’s arguments. It characterized the “rational bases” found by the Majority as “first, ‘let the people decide’ and, second, ‘give it time.'” The Dissent responds:

Under our constitutional system, the courts are assigned the responsibility of determining individual rights under the Fourteenth Amendment, regardless of popular opinion or even a plebiscite….

[T]he framers presciently recognized that two of the three co-equal branches of government were representative in nature and necessarily would be guided by self-interest and the pull of popular opinion. To restrain those natural, human impulse, the framers crafted Article III to ensure that rights, liberties, and duties need not be held hostage by popular whims….

If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, proved to be nothing but shams.

K.O.’s Comment: There is now a split between the Ninth Circuit and the Sixth Circuit. Lawyers for both sides in the Sixth Circuit case have said they will not seek en banc review by the entire Sixth Circuit; instead, both sides will ask for immediate review by the Supreme Court in the hopes of getting the case heard this term. Otherwise, they would have to wait until the Supreme Court’s next term, which would likely mean an opinion would not arrive until 2016.

I had the opportunity to meet Judge Sutton a few years ago when he was the speaker at the annual dinner held by the Knoxville chapter of the American Inns of Court. I found him to be a very engaging, likable, and highly intelligent person. As a young (by appellate court standards), ideologically conservative judge, he was reportedly on the short list for the Supreme Court appointment that ultimately went to Justice Alito. He is widely regarded to be a front runner for a Supreme Court appointment if a vacancy should occur during the term of a Republican president. Against that backdrop, I find it interesting that, when discussing a lower court’s deference to Supreme Court decisions, Judge Sutton says the lack of such deference would “return[] us to a world in which the lower courts may anticipatorily overrule all manner of Supreme Court decisions based on counting-to-five predictions, perceived trajectories in the caselaw, or, worst of all, new appointments to the Court.”

I think both opinions were written for specific audiences within the Supreme Court itself. The Majority plays to the conservative justices in its discussion of federalism and the originalist approach to constitutional interpretation. For example, the Majority not-so-subtly signals the originalists when it writes, “Nobody in this case, however, argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.”

Likewise, much of the Dissent consists of arguments about how bans on same-sex marriage cause deleterious effects on children raised by same-sex couples, an obvious nod to Justice Kennedy, the tie-breaking vote in the Supreme Court’s opinion declaring unconstitutional a provision in the Defense of Marriage Act, who bemoaned how different treatment of same-sex couples “humiliates tens of thousands of children now being raised by same-sex couples.”

This case is all but guaranteed to be reviewed by the Supreme Court. Once again, it may all come down to Justice Kennedy. Stay tuned.

Tanco v. Haslam (United States Court of Appeals for the Sixth Circuit, November 6, 2014).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.