Sixth Circuit Upholds Discriminatory Bans on Marriage Rights for Same-Sex Couples in Four States

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November 6, 2014

Today the Sixth Circuit Court of Appeals upheld as constitutional bans on marriage rights for same-sex couples in Ohio, Michigan, Kentucky and Tennessee, becoming the first federal circuit court after the Supreme Court’s watershed 2013 Windsor ruling to uphold such bans and departing from recent decisions from the 4th, 7th, 9th and 10th Circuits.

The decision applies to six lawsuits from all four states; Lambda Legal joined the case Henry v. Himes, filed by Gerhardstein & Branch, a federal lawsuit seeking to compel the State of Ohio to recognize the marriages of same-sex couples and issue accurate birth certificates listing both parents for the Ohio-born children of married same-sex couples.

Susan Sommer, Director of Constitutional Litigation for Lambda Legal, said:

We’re extremely disappointed for the families in these four states, but this decision highlights the need for the U. S. Supreme Court to right this injustice.  While a tidal wave of courts around the nation have struck down marriage bans, this decision leaves Sixth Circuit states in a backwater and, worst of all, injures same-sex couples and their children. Depriving same-sex couples and their families of the protections and dignity that come with marriage is flat out unconstitutional, and Lambda Legal vows to continue working until justice is won.

Al Gerhardstein, Attorney for Gerhardstein & Branch, said:

Our clients and their children need the full protections of marriage, and they need them now. The Sixth Circuit’s refusal to recognize marriages of same-sex couples relegates them to a second-class status for no legitimate reason.  We will continue to fight for love and commitment, and won’t stop until the law recognizes the importance of our families’ marriages and their need for the security that comes from accurate birth certificates.

Henry v. Himes was filed in February 2014. Plaintiffs include Brittani Henry and Brittni Rogers, a married same-sex couple and the parents of a baby boy born in May 2014; Georgia and Pamela Yorksmith, who married in California in 2008 and have a three-year-old son born in Ohio and another baby born in June 2014; Kelly Noe and Kelly McCracken, married in Massachusetts in 2011, with a son born in June 2014 in Ohio; and Joseph J. Vitale and Robert Talmas, a married same-sex couple living in New York City and the parents of an adopted son born in Ohio.

All plaintiff couples are seeking recognition for their marriages and accurate birth certificates listing both parents. The Ohio Department of Health, the agency charged with issuing birth certificates whose Director is the Defendant in the case, has refused to issue or amend birth certificates for same-sex parents.

This case, along with Obergefell v. Himes, also on appeal, demonstrates the importance of marriage to families through the life span, from the birth of their children through the death of a spouse and beyond. In the Obergefell case, in which Gerhardstein is lead counsel, the state appealed a federal court ruling that the state of Ohio must respect the marriages of same-sex couples legally performed in other states for the purpose of listing surviving spouses on death certificates.

In April, a federal district court declared in the Henry case that Ohio's ban on recognizing out-of-state marriages of same-sex couples is unconstitutional in all respects. The opinion further extended "heightened scrutiny" - a high level of judicial review - to Ohio’s discrimination against same-sex married couples and their children. The Court also held that the state violates the Full Faith and Credit Clause of the Constitution by denying recognition to out-of-state adoption decrees of same-sex couples and by refusing to amend the birth certificates of their Ohio-born adopted children. At the same time, the court stayed its own decision for all but the plaintiff families until the conclusion of the court proceedings.

Brittani Henry said:

We only want what’s best for our son, and he shouldn’t have any unnecessary and discriminatory obstacles placed in his way. We are both his mothers and his birth certificate should show that he is loved and parented by two caring, committed women.

In August, the Sixth Circuit Court of Appeals also heard arguments from five more cases challenging discriminatory marriage laws in every state in the Circuit, including Obergefell v. Himes, also challenging Ohio’s marriage recognition ban, and cases from Michigan, Kentucky and Tennessee.

Read the press release.