LOCAL & NATION
Gay: 6th Circuit panel’s ruling draws criticism, faces challenge Continued from Page A-1 In Thursday’s 2-1 decision, by a panel of the 6th U.S. Circuit Court of Appeals in Cincinnati, Sutton said that it appears almost inevitable that the American law will allow gay couples to marry. But the more fundamental question, he wrote, is: “Who decides?” Sutton said that such a profound change in the institution of marriage should be decided not by “an intermediate court” like his, but by “the less expedient, but usually reliable, work of the state democratic processes.” He dismissed the reasoning issued in the last year by several other federal courts, which have ruled that barring same-sex marriage violated equal protection or due process clauses of the Constitution and has no convincing rationale. Michael C. Dorf, a Cornell University Law School professor, said that “the essence of this opinion is that the issue should be left to the democratic process or to the Supreme Court, but I’m not going to do this as an appeals court judge.” In a stinging dissent, Judge Martha Craig Daughtrey, an appointee of President Bill Clinton, called the majority opinion “a largely irrelevant discourse on democracy and federalism” that treated the couples involved in the cases as “mere abstractions” rather than as real people suffering harm because they were denied equal status. Gay rights groups and lawyers for the plaintiffs in the four affected states expressed disappointment and anger. “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,” said Susan Sommer, the director of constitutional litigation for Lambda Legal, which helped argue one of the six cases involved in Thursday’s decision. The 6th Circuit decision was not a complete surprise; Sutton had expressed similar concerns about federalism and reliance on the democratic process at the hearing on the cases in
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The U.S. Supreme Court has allowed rulings in favor of gay marriage from four other circuit courts to take effect. August. He was joined in the opinion by Judge Deborah L. Cook, another Bush appointee. But since then, the Supreme Court, by declining to hear appeals, has allowed rulings in favor of gay marriage from four other circuit courts to take effect. The number of states with same-sex marriage jumped last month to 32, plus the District of Columbia, with shifts in three more states all but certain. In decisions last month declining to hear appeals, justices did not rule on the merits of the cases. But by acquiescing in the court-mandated spread of same-sex marriage to many states, justices effectively created a new social reality, making it extremely unlikely, many legal experts say, that the court would now find such bans constitutional. Justice Ruth Bader Ginsburg later explained that the lack of a split in the appeals courts made Supreme Court review of the issue unnecessary. “If the court reversed those decisions, it would create chaos,” Dorf said. “It would seem highly unlikely, but technically they can do it.” Evan Wolfson, the president of Freedom to Marry, an advocacy group, said: “Today’s ruling is completely out of step with the Supreme Court’s clear signal last month, out of step with the constitutional command as recognized by nearly every state and federal court in the past year, and out of step with the majority of the American people.” He called on the Supreme Court to take up the issue quickly and provide national resolution. But conservative opponents of same-sex marriage, who see states-rights arguments as their last best hope in the courts, praised the decision. “The people of every state should remain free to affirm marriage as the union of a man
and a woman in their laws,” said Byron Babione, senior counsel with Alliance Defending Freedom, a Christian legal group that has argued several samesex marriage cases. “As the 6th Circuit rightly concluded, the Constitution does not demand that one irreversible view of marriage be judicially imposed on everyone.” In the cases decided Thursday, couples from Kentucky and Michigan had asked lower courts to overturn state amendments barring same-sex marriage. Couples from Ohio and Tennessee had asked the courts to require the states to recognize same-sex marriages performed legally in other states. “This ruling means that many couples like April DeBoer and Jayne Rowse will continue to be excluded from the protections and responsibilities that come with marriage,” said Equality Michigan, an advocacy group, referring to the plaintiffs in the case there. Many experts had expected the Supreme Court to take on a marriage case this fall. But in September, Justice Ruth Bader Ginsburg said that the justices might wait — as they in fact have — for a division to emerge among federal circuit courts of appeals. “So far, the federal courts of appeals have answered the question the same way — holding unconstitutional the bans on same-sex marriage,” she told an audience in Minnesota. “There is a case now pending before the Court of Appeals for the 6th Circuit,” she said, referring to the cases decided Thursday. “Now if that court should disagree with the others then there will be some urgency in the court taking the case,” she said. “Sooner or later, yes, the question will come to the court,” she said. The Associated Press contributed to this report.
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House power shift likely dooms early ed initiative Plan to tap $14B in land grant funds dead, lawmaker says
do nothing because the House has changed. These guys deserve to be put on the record or at least hear the bill,” Padilla said in a telephone interview. Padilla and many other By Milan Simonich Democrats in the Legislature The New Mexican have pushed hard for the early childhood initiative, especially With Republicans taking because surveys by the Annie charge of the New Mexico E. Casey Foundation ranked House of Representatives for New Mexico 50th and 49th in the first time since 1954, one child well-being during the last major policy question already two years. may be settled. If children get the right start A proposed constitutional in life as infants, more will amendment to tap the state’s go on to graduate from high $14 billion land grant endowment appears dead on arrival at school and college, Padilla said. In turn, fewer will end up the state Capitol. in prison or in need of public The initiative would take a assistance, he said. portion of the endowment’s But with Republicans in annual profits to expand early control of the House 37-33, the childhood education to every initiative has almost no chance infant and toddler in New of advancing. At least 36 House Mexico. members would have to vote “I think it’s dead. It’s not a for the bill to place it on the possibility now,” Rep. Larry Larrañaga,R-Albuquerque, said next statewide ballot. In the last three years, not a single in an interview. Republican in the Legislature Like all Republicans in the Legislature during the last four has supported the initiative. Padilla, though, says this is a years, Larrañaga said the state new day. Minds may change or should not deplete an endownewcomers may not agree with ment that is supposed to help fund public education decades the old guard, he said. The proposal also would from now. Another opponent of tapping have to clear the state Senate to make the ballot. the endowment, Democratic Proponents of the early state Sen. John Arthur Smith of Deming, said the shift in power childhood education proposal blamed Smith for burying the means there no longer is a chance of the initiative clearing bill in his Senate Finance Committee in 2013, killing it without the House of Representatives. “I see it that way,” Smith said a vote. At the time, they saw Thursday in an interview at the Smith as the obstacle, not the House of Representatives. Capitol. Smith gave the bill a hearing Sen. Michael Padilla, D-Albuthis year. Senators killed it on querque, said he nonetheless would again introduce a bill to an 8-2 vote. Four Democrats expand early childhood educa- and Four Republicans voted against the measure, debunking tion by using the land grant the claim that Smith alone was endowment. blocking the bill. Eighteen freshmen will join Smith says early childhood the 70-member House of Repeducation is important, and resentatives in January, and they may be persuaded that the the Legislature has acknowledged that by increasing its early childhood bill should be funding without draining the sent to New Mexico’s voters, endowment. He pointed to the Padilla said. “I’m not going to sit back and New Mexico Children, Youth
At least 36 House members would have to vote for the bill to place it on the next state ballot. and Families Department as an example of recent gains in funding for early childhood programs. In July, the department added another $18.6 million to subsidize the care of infants and toddlers. With the increase, overall state funding for child care centers reached $90 million. But Padilla and other advocates of early childhood education say the state still does not have a comprehensive program that would get the best results and ultimately improve New Mexico’s economy. Miguel Gomez, an executive of St. Joseph’s Children, has called various legislators’ claims of substantial funding increases for early childhood programs “disingenuous.” “The overwhelming majority of that money went to kids in grades K through 3,” Gomez said in a recent interview. “To change long-term outcomes in education, you need to start early. That’s prenatal to age 4.” But with the Republican takeover of the House of Representatives and entrenched opposition in the Senate, the initiative may have less of a chance to make the ballot than ever. Contact Milan Simonich at 986-3080 or msimonich@ sfnewmexican.com. Follow his Ringside Seat column and blog at santafenewmexican.com.
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