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Media Alerts - Deboer v. Snyder -- Sixth Circuit
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December 1, 2014
  Deboer v. Snyder -- Sixth Circuit
Headline: The Sixth Circuit denies application of the Fourteenth Amendment to same-sex marriage and upholds a rational basis for constitutional amendments that define marriage as between a man and a woman.

Area of Law: Due Process and Equal Protection Clause of the Fourteenth Amendment; Michigan Constitution; Ohio Constitution; Kentucky Constitution; Tennessee Constitution

Issues Presented: Does the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment require States to recognize same-sex marriage?

Brief Summary: The Sixth Circuit consolidated cases from Michigan, Kentucky, Ohio, and Tennessee in which plaintiffs challenged state constitutional amendments that defined marriage as between a man and a woman. The Sixth Circuit upheld the state laws on the grounds that the Due Process and Equal Protection Clauses of the Fourteenth Amendment do not require states to recognize same-sex marriages.

The Court based its decision on federalism principles, relying on a Supreme Court decision from 1972, Baker v. Nelson, 409 U.S. 810. The Court further held that there was no constitutional requirement to expand the definition of marriage after analyzing arguments based on originalism, rational-basis review, animus, interference with fundamental rights, evolving moral and policy considerations, and whether or not homosexuals as a group are a discrete and insular class without political power. In the end, the Court rejected all of the plaintiffs' arguments and upheld the state constitutional amendments.

Extended Summary: The entire holding was grounded on federalism principles since the Sixth Circuit determined that state governments have traditionally been given broad authority to regulate domestic-relationship issues. Judge Sutton began the opinion by framing the question as "how best to handle [change] under the United States Constitution." The Judge reinforced the broad framing of the question by pointing out that, practically speaking, this opinion will decide "whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples."

Judge Sutton further pointed out that all the states covered by the Sixth Circuit approved of constitutionalizing the definition of marriage through citizen initiatives that won by large majorities. In Michigan, 59% of the voters opted to constitutionalize the state's definition of marriage; in Kentucky, 74% of the voters approved; in Ohio, 62%; and in Tennessee, 80%. Therefore, the effect of affirming the district courts would be to overrule these citizen initiatives by judicial mandate.

Finally, Judge Sutton anchored the federalism argument on a one-line order from the United States Supreme Court's Baker decision, which held that a case with the same issue as the one presented here did not raise "a substantial federal question." The Sixth Circuit pointed to only two scenarios in which it may ignore a Supreme Court mandate: first, when the Supreme Court overrules the decision expressly by name; and second, when the Supreme Court overrules a decision by outcome.

As to the first, since none of the decisions cited by the plaintiffs mention Baker by name, an express overruling has not occurred. As to the second method, the Court held that no Supreme Court case has actually addressed the federalism issue since Baker. Therefore, the Sixth Circuit is still bound by it. The various plaintiffs made a variety of arguments that doctrinal developments have overruled Baker and that the Sixth Circuit should ignore the case. The plaintiffs rooted all of their arguments in the Due Process and the Equal Protection Clauses of the Fourteenth Amendment and sought various forms of equitable relief. All of the plaintiffs succeeded in their respective district courts, and the district courts applied a variety of reasons for striking down the marriage laws. But the Sixth Circuit rejected all the district courts' rationales and overturned their decisions. The Sixth Circuit held that none of the plaintiffs' arguments make "the case for constitutionalizing the definition of marriage" and "removing the issue from ... the hands of the state voters."

The Court pointed out that no plaintiff in this case argued that the adopters of the Fourteenth Amendment understood it to require the States to change the definition of marriage. Relying on recent Supreme Court decisions, the Sixth Circuit held that tradition and long-accepted practices only reinforce a State's ability to define marriage as between a man and a woman. Thus, the original meaning of the Fourteenth Amendment permits, but does not require, States to define marriage in any particular way.

The Court recognized that all laws are subject to rational-basis review. However, the Court noted that this standard should be applied with a "light touch" and great deference to legislators or, as in this case, the voters. The Court held that under rational-basis review, if the judge can find "any plausible reason, even one that did not motivate the legislators who enacted it - the law must stand, no matter how unfair, unjust, or unwise." The Court found two plausible reasons to justify defining marriage as between a man and a woman: (1) the regulation of sex and the intended and unintended effects of male-female intercourse; and (2) the "wait and see" approach, where States may legitimately wish to wait before changing a norm that has existed for centuries.

As for the first rationale, the Court pointed out that couples of the same sex do not run the risk of unintended offspring. The Court further argued that while people may not need the government's encouragement to have sex or procreate, they may need the government's encouragement to maintain stable relationships. The Court further stated that "it is not society's laws or for that matter any one religion's laws, but nature's laws (that men and women complement each other biologically), that created the policy imperative." Thus, marriage definitions based on gender are rational and help to stabilize society.

As to the second rationale, the "wait-and-see" approach, the Court held that a "sense of caution does not violate the Fourteenth Amendment." The Court found that the trend to adopt gay marriage was a new one, and the Court posed the question: "How can we say that the voters acted irrationally for sticking with the seen benefits of thousands of years of adherence to the traditional definition of marriage in the face of . . . a new definition of marriage?"

The Court held further that if defining marriage as between a man and a woman could not withstand rational-basis review, then neither could laws enforcing monogamy. The Court stated that "[n]o State is free of marriage policies that go too far in some directions and not far enough in others, making all of them vulnerable - if the claimants' theory of rational basis review prevails."

The Court went on to address the argument that these laws were born of animosity. The Court acknowledged that, in rare cases, judges must strike down a law -- even under rational-basis review -- if it is (1) a novel law that (2) targets a single group for disfavored treatment. But the Court held that none of these statewide initiatives met the elements of animus since they merely "codified a long-existing, widely held social norm already reflected in state law." The Court stated that the concern which motivated the enactment of these initiatives was not malice or unthinking prejudice, but "fear that the courts would seize control over an issue that people of good faith care deeply about." The Court stated that to accept such a motivation as animus would make the term useless.

Furthermore, the Court stated that assessing the motives of all voters in a state-wide initiative "strains judicial competence" because analyzing the motivations behind millions of voters is unwieldy. The Court also found that, should it conclude that the initiative was motivated by animus, it would be labeling traditional marriage proponents "as a monolithic group of hate-mongers." But the Court pointed out that the question of animus does not turn on the motivations of the people enacting the law, but whether anything but "prejudice to the affected class could explain the law." The Court hinged the answer to that question on its rational-basis arguments explained above and cited a string of other cases that found many reasons to justify defining marriage between a man and a woman other than anti-gay sentiments.

The Court then moved on to address whether defining marriage as between a man and a woman affects a fundamental right and thus deserves a more "unforgiving" scrutiny. The Court noted that just because something is fundamentally important, does not mean that it is a fundamental right under the precedence of substantive due process.

The test of substantive due process is defined as whether the right is "deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist" without the right. The Court stated that this test requires the judge to ask two questions: (1) does the right appear expressly in the Constitution? And (2) does it turn on a bedrock assumption about liberty?

To the first question, the Court held that because neither the right to marry in general nor the right to same-sex marriage appear in the Constitution, "[t]hat route for recognizing a fundamental right to same-sex marriage does not exist." To the second question, the Court held that same-sex marriage does not implicate bedrock assumptions of liberty since the definition of marriage did not include gay couples until 2003; therefore, a bedrock assumption of liberty is not contingent on same-sex marriage.

The Court finished its discussion of fundamental rights by pointing to four examples of laws relating to marriage that have never been subjected to heightened scrutiny. First, States have changed the duration of marriage by enacting no-fault divorce statutes. Second, States have limited the number of people eligible to marry by outlawing polygamy. Third, States have enacted age-of-consent laws requiring a minimum age for marriage. Fourth, some States allow cousins to marry while others do not. The Court concluded that since strict scrutiny has not been applied to any of these types of laws, it cannot apply to sexual-orientation-based distinctions of marriage.

The next argument that the Court considered was whether homosexuals as a group are a discrete and insular class without political power. This argument rests on another line of Equal Protection cases that call for strict scrutiny when laws target groups that legislators have singled out for unequal treatment in the past. The Court held that since the institution of marriage between a man and a woman arose separately from American laws that have targeted same-sex couples, it is impossible to infer that prejudice against gays led to the traditional definition of marriage. The Court then cited the defeat of "Don't Ask, Don't Tell"; the striking down of a discriminatory city charter in Cincinnati; numerous victories in states that have expanded the definition of marriage; and finally, victories in federal courts. According to the Court, all of this supports the proposition that same-sex couples are not politically powerless but, instead, are an "influential, indeed eminently successful" interest group.

The Court finished its discrete-and-insular-minority discussion with a hypothetical question: "If federal preeminence in foreign relations requires lenient review of federal immigration classifications, why doesn't state preeminence in domestic relations call for equally lenient review of state marriage definitions?" The Court held that strict scrutiny does not apply to sexual-orientation-based classifications.

Finally, the Court addressed whether evolving moral and policy considerations should force the Court to strike down these marriage laws. The Court stated that the theory of the living constitution rests on the premise that every generation has the right to govern itself. Therefore, federal judges must appreciate the pace of democratic majorities when voters attempt to decide whether to embrace an evolving societal norm, as long as that pace is within reasonable bounds. The Court found that the current pace of democratic majoritarian rule was reasonable because (1) the laws in question came about from 2004 to 2006; (2) no Supreme Court Justice in American history has written an opinion maintaining that the traditional definition of marriage violates the Fourteenth Amendment; and (3) even the European courts have not yet recognized the right to same-sex marriage. Furthermore, the Court stated that it would be "dangerous and demeaning to the citizenry" for Courts to interject themselves into contentious and evolving issues such as this one. Therefore, since the issue was still a moving target, it would be too soon for a Court to intervene on the grounds of the evolving-meanings doctrine.

Dissent: The dissent, authored by Judge Daughtrey, criticized the majority's framing of the question on federalism grounds as an "introductory lecture in Political Philosophy." Judge Daughtrey argued that the broad framing of the question ignored the facts and plaintiffs before the Court, and dodged the specific question of whether a State's prohibition of same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment.

The dissent asserted that these laws fail the rational-basis test because they (1) do not actually further any the legitimate interest, and (2) are motivated by animus and based on irrational distrust of a particular group. The dissent argued that the animus standard applies here since the Supreme Court has instructed that "an exclusionary law violates the Equal Protection Clause when it is based not upon relevant facts, but instead upon only a general, ephemeral distrust of, or discomfort with, a particular group." Pointing to both the expert testimony offered in the Michigan case and the "irresponsible procreation theory," the dissent concluded that the basis of these laws was, in fact, merely a distrust or discomfort with the idea of same-sex couples getting married. The dissent noted the majority's concession that "we as a country have such a long history of prejudice based on sexual orientation." Therefore, the dissent noted, it would be hypocritical to deny the existence of unconstitutional animus in the rational-basis analysis of these cases.

Link to full opinion: http://www.ca6.uscourts.gov/op...s.pdf/14a0275p-06.pdf

Panel: Circuit Judges Daughtrey, Sutton, Cook

Argument Date: August 6, 2014

Date of Issued Opinion: November 6, 2014

Docket Number: 14-1341; 14-3057; 14-3464; 14-5291; 14-5297; 14-5818

Decided: November 6, 2014

Case Alert Author: Jerrod D. Simpson

Counsel: ARGUED: Aaron D. Lindstrom, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant in 14-1341. Carole M. Stanyar, Ann Arbor, Michigan, for Appellees in 14-1341.

Eric E. Murphy, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant in 14-3057 and 14-3464. Alphonse A. Gerhardstein, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, for Appellees in 14-3057 and 14- 3464.

Leigh Gross Latherow, VANANTWERP, MONGE, JONES, EDWARDS & MCCANN, LLP, Ashland, Kentucky, for Appellant in 14-5291 and 14-5818. Laura E. Landenwich, CLAY DANIEL WALTON & ADAMS, PLC, Louisville, Kentucky, for Appellees in 14-5291 and 14- 5818.

Joseph F. Whalen, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants in 14-5297. William L. Harbison, SHERRARD & ROE, PLC, Nashville, Tennessee, for Appellees in 14-5297.

ON BRIEF: 14-1341: Aaron D. Lindstrom, Kristin M. Heyse, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Carole M. Stanyar, Ann Arbor, Michigan, Dana M. Nessel, Detroit, Michigan, Robert A. Sedler, WAYNE STATE UNIVERSITY LAW SCHOOL, Detroit, Michigan, Kenneth M. Mogill, MOGILL, POSNER & COHEN, Lake Orion, Michigan, for Appellees. Kyle J. Bristow, BRISTOW LAW, PLLC, Clarkston, Michigan, Alphonse A. Gerhardstein, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, David A. Robinson, North Haven, Connecticut, Deborah J. Dewart, Swansboro, North Carolina, Paul Benjamin Linton, Northbrook, Illinois, James R. Wierenga, DAVID & WIERENGA, P.C., Grand Rapids, Michigan, Eric Rassbach, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C., James J. Walsh, Thomas J. Rheaume, Jr., BODMAN PLC, Detroit, Michigan, William J. Olson, WILLIAM J. OLSON, P.C., Vienna, Virginia, Lawrence J. Joseph, Washington, D.C., Thomas M. Fisher, OFFICE OF THE ATTORNEY GENERAL OF INDIANA, Indianapolis, Indiana, Mary E. McAlister, LIBERTY COUNSEL, Lynchburg, Virginia, Mathew D. Staver, Anita L. Staver, LIBERTY COUNSEL, Orlando, Florida, Anthony R. Picarello, Jr., Jeffrey Hunter Moon, Michael F. Moses, U.S. CONFERENCE OF CATHOLIC BISHOPS, Washington, D.C., Alexander Dushku, R. Shawn Gunnarson, KIRTON MCCONKIE, Salt Lake City, Utah, Erin Elizabeth Mersino, THOMAS MORE LAW CENTER, Ann Arbor, Michigan, David Boyle, Long Beach, California, Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Elizabeth B. Wydra, CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., Paul M. Smith, JENNER & BLOCK LLP, Washington, D.C., Catherine E. Stetson, HOGAN LOVELLS US LLP, Washington, D.C., Jason Walta, NATIONAL EDUCATION ASSOCIATION, Washington, D.C., Diana Raimi, JAFFE RAITT HEUER & WEISS, P.C., Ann Arbor, Michigan, Rocky C. Tsai, ROPES & GRAY LLP, San Francisco, California, Alan M. Gershel, THOMAS M. COOLEY LAW SCHOOL, Auburn Hills, Michigan, Jerome C. Roth, Nicole S. Phillis, MUNGER, TOLLES & OLSON LLP, San Francisco, California, Andrew J. Davis, FOLGER LEVIN LLP, San Francisco, California, Nicholas M. O'Donnell, SULLIVAN & WORCESTER LLP, Boston, Massachusetts, Sean R. Gallagher, POLSINELLI PC, Denver, Colorado, Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, Ria Tabacco Mar, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York, Christy L. Anderson, BRYAN CAVE LLP, Denver, Colorado, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Jonathan B. Miller, OFFICE OF THE MASSACHUSETTS ATTORNEY GENERAL, Boston, Massachusetts, Jyotin Hamid, Joseph Rome, DEBEVOISE & PLIMPTON LLP, New York, New York, Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Christopher D. Man, CHADBOURNE & PARKE LLP, Washington, D.C., Chase B. Strangio, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Suzanne B. Goldberg, COLUMBIA LAW SCHOOL, New York, New York, Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN'S LAW CENTER, Washington, D.C., G. David Carter, Joseph P. Bowser, Hunter Carter, ARENT FOX LLP, Washington, D.C., Sara Bartel, MORRISON & FOERSTER LLP, San Francisco, California, Daniel McNeel Lane, Jr., Matthew E. Pepping, AKIN GUMP STRAUSS HAUER & FELD LLP, San Antonio, Texas, Jessica M. Weisel, AKIN GUMP STRAUSS HAUER & FELD LLP, Los Angeles, California, Michael L. Whitlock, BINGHAM MCCUTCHEN LLP, Washington, D.C., for Amici Curiae.

14-3057: Bridget E. Coontz, Zachery P. Keller, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Alphonse A. Gerhardstein, Jennifer L. Branch, Jacklyn Gonzales Martin, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, Lisa T. Meeks, NEWMAN & MEEKS CO., LPA, Cincinnati, Ohio, Chase B. Strangio, James D. Esseks, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Drew Dennis, ACLU OF OHIO, INC., Cleveland, Ohio, for Appellees. Byron J. Babione, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, Lawrence J. Joseph, Washington, D.C., Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Gregory R. Nevins, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., Atlanta, Georgia, Susan L. Sommer, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., New York, New York, Camilla B. Taylor, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., Chicago, Illinois, Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Paul M. Smith, JENNER & BLOCK LLP, Washington, D.C., Roberta A. Kaplan, Jaren Janghorbani, Joshua D. Kaye, Jacob H. Hupart, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, New York, New York, Thomas D. Warren, BAKER & HOSTETLER LLP, Cleveland, Ohio, Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN'S LAW CENTER, Washington, D.C., Shannon P. Minter, Christopher F. Stoll, NATIONAL CENTER FOR LESBIAN RIGHTS, Washington, D.C., for Amici Curiae.

14-3464: Eric E. Murphy, Bridget E. Coontz, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Alphonse A. Gerhardstein, Jennifer L. Branch, Jacklyn Gonzales Martin, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, Lisa T. Meeks, NEWMAN & MEEKS CO., LPA, Cincinnati, Ohio, Susan L. Sommer, M. Currey Cook, Keith Hammeran, LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC., New York, New York, Paul D. Castillo, LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC., Dallas, Texas, for Appellees. Catherine E. Stetson, HOGAN LOVELLS US LLP, Washington, D.C., Andrew J. Davis, FOLGER LEVIN LLP, San Francisco, California, Sean R. Gallagher, POLSINELLI PC, Denver, Colorado, Nicholas M. O'Donnell, SULLIVAN & WORCESTER LLP, Boston, Massachusetts, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Ria Tabacco Mar, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York, Jyotin Hamid, Joseph Rome, DEBEVOISE & PLIMPTON LLP, New York, New York, Suzanne B. Goldberg, COLUMBIA LAW SCHOOL, New York, New York, Daniel McNeel Lane, Jr., Matthew E. Pepping, AKIN GUMP STRAUSS HAUER & FELD LLP, San Antonio, Texas, Jessica M. Weisel, AKIN GUMP STRAUSS HAUER & FELD LLP, Los Angeles, California, Paul D. Ritter, Jr., Christopher J. Weber, Robert G. Schuler, KEGLER, BROWN, HILL & RITTER CO., L.P.A., Columbus, Ohio, Lawrence J. Joseph, Washington, D.C., Harlan D. Karp, Tina R. Haddad, Cleveland, Ohio, Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Christopher D. Man, CHADBOURNE & PARKE LLP, Washington, D.C., Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Rocky C. Tsai, ROPES & GRAY LLP, San Francisco, California, Joseph R. Guerra, SIDLEY AUSTIN LLP, Washington, D.C., Emma L. Dill, BRYAN CAVE LLP, San Francisco, California, Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN'S LAW CENTER, Washington, D.C., Sara Bartel, MORRISON & FOERSTER LLP, San Francisco, California, G. David Carter, Joseph P. Bowser, Hunter T. Carter, ARENT FOX LLP, Washington, D.C., Marjory A. Gentry, ARNOLD & PORTER LLP, San Francisco, California, Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, Harlan D. Karp, Cleveland, Ohio, for Amici Curiae.

14-5291: Leigh Gross Latherow, William H. Jones, Jr., Gregory L. Monge, VANANTWERP, MONGE, JONES, EDWARDS & MCCANN, LLP, Ashland, Kentucky, for Appellant. Laura E. Landenwich, Daniel J. Canon, L. Joe Dunman, CLAY DANIEL WALTON & ADAMS, PLC, Louisville, Kentucky, Shannon R. Fauver, Dawn R. Elliott, FAUVER LAW OFFICE, PLLC, Louisville, Kentucky, for Appellees. David A. Robinson, North Haven, Connecticut, Deborah J. Dewart, Swansboro, North Carolina, Stanton L. Cave, LAW OFFICE OF STAN CAVE, Lexington, Kentucky, Eric Rassbach, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C., David Boyle, Long Beach, California, Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Paul M. Smith, JENNER & BLOCK LLP, Washington, D.C., Catherine E. Stetson, HOGAN LOVELLS US LLP, Washington, D.C., Andrew J. Davis, FOLGER, LEVIN LLP, San Francisco, California, Rocky C. Tsai, ROPES & GRAY LLP, San Francisco, California, Jerome C. Roth, Nicole S. Phillis, MUNGER, TOLLES & OLSON LLP , San Francisco, California, Nicholas M. O'Donnell, SULLIV AN & WORCESTER LLP, Boston, Massachusetts, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Sean R. Gallagher, POLSINELLI PC, Denver, Colorado, Jyotin Hamid, Joseph Rome, DEBEVOISE & PLIMPTON LLP, New York, New York, Christy L. Anderson, BRYAN CAVE LLP, Denver, Colorado, Ria Tabacco Mar, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York, Suzanne B. Goldberg, COLUMBIA LAW SCHOOL, New York, New York, Joshua A. Block, Chase Strangio, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Elizabeth B. Wydra, CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN'S LAW CENTER, Washington, D.C., Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Christopher D. Man, CHADBOURNE & PARKE LLP, Washington, D.C., Sara Bartel, MORRISON & FOERSTER LLP, San Francisco, California, Daniel McNeel Lane, Jr., Matthew E. Pepping, AKIN GUMP STRAUSS HAUER & FELD LLP, San Antonio, Texas, Jessica M. Weisel, AKIN GUMP STRAUSS HAUER & FELD LLP, Los Angeles, California, Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, Marjory A. Gentry, ARNOLD & PORTER LLP, San Francisco, California, Michael L. Whitlock, BINGHAM MCCUTCHEN LLP, Washington, D.C., G. David Carter, Joseph P. Bowser, Hunter Carter, ARENT FOX LLP, Washington, D.C., for Amici Curiae.

14-5297: Joseph F. Whalen, Martha A. Campbell, Kevin G. Steiling, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants. William L. Harbison, Phillip F. Cramer, J. Scott Hickman, John L. Farringer, SHERRARD & ROE, PLC, Nashville, Tennessee, Abby R. Rubenfeld, RUBENFELD LAW OFFICE, PC, Nashville, Tennessee, Maureen T. Holland, HOLLAND AND ASSOCIATES, PLLC, Memphis, Tennessee, Regina M. Lambert, Knoxville, Tennessee, Shannon P. Minter, Christopher F. Stoll, Amy Whelan, Asaf Orr, NATIONAL CENTER FOR LESBIAN RIGHTS, San Francisco, California, for Appellees. Deborah J. Dewart, Swansboro, North Carolina, Eric Rassbach, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C., Byron J. Babione, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, Paul M. Smith, JENNER & BLOCK LLP, Washington, D.C., Catherine E. Stetson, HOGAN LOVELLS US LLP, Washington, D.C., Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Elizabeth B. Wydra, CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., Andrew J. Davis, FOLGER LEVIN LLP, San Francisco, California, Rocky C. Tsai, ROPES & GRAY LLP, San Francisco, California, Jerome C. Roth, Nicole S. Phillis, MUNGER, TOLLES & OLSON LLP, San Francisco, California, Nicholas M. O'Donnell, SULLIVAN & WORCESTER LLP, Boston, Massachusetts, Sean R. Gallagher, POLSINELLI PC, Denver, Colorado, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Barbara J. Chisholm, P. Casey Pitts, ALTSHULER BERZON LLP, San Francisco, California, Christy L. Anderson, BRYAN CAVE LLP, Denver, Colorado, Jyotin Hamid, Joseph Rome, DEBEVOISE & PLIMPTON LLP, New York, New York, Ria Tabacco Mar, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York, Joshua A. Block, Chase B. Strangio, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Christopher D. Man, CHADBOURNE & PARKE LLP, Washington, D.C., Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN'S LAW CENTER, Washington, D.C., Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, G. David Carter, Joseph P. Bowser, Hunter Carter, ARENT FOX LLP, Washington, D.C., Sara Bartel, MORRISON & FOERSTER LLP, San Francisco, California, Daniel McNeel Lane, Jr., Matthew E. Pepping, AKIN GUMP STRAUSS HAUER & FELD LLP, San Antonio, Texas, Jessica M. Weisel, AKIN GUMP STRAUSS HAUER & FELD LLP, Los Angeles, California, Marjory A. Gentry, ARNOLD & PORTER LLP, San Francisco, California, Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, Michael L. Whitlock, BINGHAM MCCUTCHEN LLP, Washington, D.C., Suzanne B. Goldberg, COLUMBIA LAW SCHOOL, New York, New York, for Amici Curiae. 14-5818: Leigh Gross Latherow, William H. Jones, Jr., Gregory L. Monge, VANANTWERP, MONGE, JONES, EDWARDS & MCCANN, LLP, Ashland, Kentucky, for Appellant. Laura E. Landenwich, Daniel J. Canon, L. Joe Dunman, CLAY DANIEL WALTON & ADAMS, PLC, Louisville, Kentucky, for Appellees. Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, for Amicus Curiae.

Author of Opinion: Judge Sutton joined by Judge Cook

Author of Dissent: Judge Daughtrey

Case Alert Supervisor: Prof. Mark Cooney

    Posted By: Mark Cooney @ 12/01/2014 03:38 PM     6th Circuit  

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