A Throwback to the Future

Patience is one of the most challenging virtues. As marriage equality finds its home in state after state after various federal courts strike down exclusion laws passed amid political panic in the wake of Lawrence v. Texas, what seems a straightforward issue has observers on the edges of their seats.

Squire Patton BoggsMeanwhile, how about a throwback, just for nostalgia’s sake? You know, all of ten days.

That is to say, in the wake of the Supreme Court’s refusal to hear heterosupremacist appeals earlier this month, Steve Delchin, writing for the Sixth Circuit Appellate Blog maintained by the D.C. law firm Squire Patton Boggs, looked ahead to what is supposed to be a bated-breath decision coming from the Sixth Circuit sometime before winter arrives:

Some media outlets are calling today’s cert denials a surprise given the high-profile issue involved. But the denials are not really unexpected when you consider there has been little disagreement among lower courts over whether same-sex marriage bans are constitutional. Perhaps the Court is waiting for a split to emerge (as we predicted in prior posts and media comments). All eyes are therefore on the Sixth Circuit’s forthcoming decisions to see whether they will be in line with other courts or whether the Sixth Circuit will blaze a different path. We will continue to keep close watch.

I think part of the nervousness some feel about the forthcoming Sixth Circuit decision has to do with the fact that so many of these decisions in favor of marriage equality focus on equal protection and due process. While I might, perhaps, seem obsessed with Article IV, Section I, the Full Faith and Credit Clause, it’s a curious actor in the drama. Judge Heyburn, in Bourke v. Beshear, explicitly dodged IV.1. Judge Black, in Henry v. Himes, would seem to have settled the question.

So, again, the “Rubin pathway”, named for Judge Edward D. Rubin of the Fifteenth Judicial District of Louisiana, Parish of Lafayette:

Article IV.1: Under the Full Faith and Credit Clause of the United States Constitution, a state cannot refuse to recognize a legal marriage in another state.

Amendment XIV.1: Thus, having recognized an out-of-state marriage, the state is Constitutionally prohibited from denying other same-sex marriages under the Equal Protection Clause.

Equal Protection (redux): It is unconstitutionally burdensome for a state to tell its citizens to go to another state in order to fulfill their rights.

Juristic laypersons, including myself, sometimes forget—or subsume under the Equal Protection Clause—the idea of an Amendment XIV Due Process Clause, which arose in Judge Reinhardt’s concurrence with his own Opinion of the Court regarding marriage bans in Idaho and Nevada. Regardless, the pathway runs through the out-of-state marriages. Whatever juristic acrobatics some observers seem to expect of the Sixth Circuit that would uphold marriage bans in several states, this almost seems invested in the expectation of something about the judges involved, or their personalities, simply refusing to recognize Equal Protection; indeed, that was Judge Feldman’s pathway in New Orleans.

Perhaps it should be a drinking game. Or a betting book. Will the Sixth reject marriage equality? How and why? Like the word game Boggle, the participants set aside the common answers, although those points wouldn’t be scratched entirely. Rather, from what is left, each participant must drink for whatever is left that they got wrong, or the other players got right. And then everyone drinks for whatever is on the common list, according to what they got wrong.

Then again, there is always a risk of hospitalization. For whatever reason, many prominent observers believe marriage equality is in doubt in the Sixth Circuit. And if they turn out to be right? Yeah. Massive … alcohol … poisoning. Because it will be a decision for the ages, a juristic construction of future legend.


Delchin, Steve. “Still Waiting on Sixth Circuit’s Same-Sex Marriage Rulings As U.S. Supreme Court Denies Cert Petitions In Same-Sex Marriage Appeals From Three Other Circuits”. Sixth Circuit Appellate Blog. 6 October 2014.

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