On Marriage, U.S. Judges in Lower Courts All but Unanimous

      The Supreme Court is all but certain to be divided when it issues its decision in the same-sex marriage cases, presumably at the end of June. But federal judges in district and appellate courts have been all but unanimous in favor of recognizing a constitutional right to marriage for same-sex couples over the past 17 months.

      The four judges who ruled in favor of plaintiff same-sex couples in the cases to be argued before the court on Tuesday [April 28] are a representative cross-sample of the scores of federal judges who, with two exceptions, have ruled in favor of marriage equality since December 2013. All of those rulings have relied in large part on the Supreme Court’s decision in June 2013 in United States v. Windsor, which struck down the major provision of the federal Defense of Marriage Act (DOMA).

      The judges from Michigan, Ohio, Kentucky, and Tennessee include two who were appointed by Republican presidents, two by Democrats. They range in age from early 60s to early 70s. They received their law degrees from schools representing the range of legal education: elite, second-tier, state school, small local school. Their legal careers before appointment to the federal bench were nothing out of the ordinary.

      All four of the judges spent most of their time after law school in private practice. Two had worked as prosecutors, and two had served in lower federal courts — either as a magistrate or as a bankruptcy court judges. Only one, it appears, ever sought elective office.

      Here as reference are capsule biographies of the four with the case names in parentheses:

      Bernard Friedman, born 1943, Detroit College of Law, local prosecutor, private practice, appointed by Reagan, 1988 (DeBoer v. Snyder).

      Timothy Black, born 1953, Harvard Law, civil litigator, unsuccessful candidate as Democrat for state judge, U.S. magistrate judge (chosen by USDC judges), appointed by Obama, 2009 (Obergefell v. Hodges).

      John Heyburn II, born 1948, University of Kentucky Law, civil litigator, appointed by Bush41 in 1992 (Bourke v. Beshear) .

      Aleta Trauger, born 1945, Vanderbilt Law, private practice, asst US atty, chief of staff to mayor of Nashville, US bankruptcy judge (1993-1998), appointed by Clinton, 1998 (Tanco v. Haslam).

      Among the five federal courts of appeals to rule on same-sex marriage, only the Sixth Circuit ruled against recognizing a right to marriage for gay and lesbian couples. In the other four circuits, two decisions were unanimous and two were by 2-1 votes. The dissenting judges in the Fourth and Tenth Circuit cases were both Republican appointees.

      In the Sixth Circuit decision, Obergefell v. Hodges, the three judges divided along the partisan lines of the president who appointed them. Here as reference are capsule biographies:

      Jeffrey Sutton, born 1960, Ohio State College of Law, private practice, Ohio state solicitor, appointed by Bush43 in 2003 after earlier nomination in 2001 was never voted on.

      Deborah Cook, born 1952, University of Akron Law School, private practice, Ohio Court of Appeals, Oho Supreme Court, appointed by Bush43 in 2003 after earlier nomination in 2001 was never voted on.

      Martha Craig (Cissy) Daughtrey, born 1942, Vanderbilt Law School, local prosecutor, Tennessee Court of Criminal Appeals, Tennessee Supreme Court, appointed by Clinton in 1993.

      Sutton wrote the majority opinion; Daughtrey wrote a dissenting opinion.

      The Michigan and Kentucky cases challenge state laws banning marriage for same-sex couples; the Ohio and Tennessee cases challenge state laws refusing to recognize same-sex marriages from other jurisdictions. The Supreme Court consolidated the four cases for two-and-a-half hours of arguments on Tuesday, with 90 minutes on the state bans and 60 minutes on the non-recognition provisions.