A common talking point since Friday’s Obergefell decision has been some variation of just “five judges” decided the case. (They’ve also included some modifier on that, such as “unelected”, which it’s been that way since the nation’s founding, or “black-robed,” as if attire had something to do with it.)
That’s ridiculous. Court cases don’t just magically show up at the Supreme Court door. They go through an exhaustive process, and few cases have been more exhaustive than Obergefell. In fact, more amicus briefs were submitted in Obergefell than in any other court case in history.
The truth is the one case that finally was decided was actually four cases (Obergefell was in Ohio, but other cases were in Michigan, Kentucky and Tennessee), each one with its own legal history, seen by many judges, with appeals and other judges reviewing the cases, then consolidated a reheard before a circuit of judges before finally being heard by the Supreme Court.
In addition, the same process has occurred outside the sixth circuit. In the fourth, seventh, ninth and tenth circuits too had multiple cases that went through the same process, each reviewed by multiple judges. Each of these cases too went to the Supreme Court. But the Supreme Court refused to hear the cases for one reason: There was no disagreement. Almost all of the judges (and there were many) in those circuits agreed that marriage equality was a fundamental right. That is why marriage equality was already law of the land in 36 states: The courts ruled it was the law of the land and the Supreme Court agreed to let the decisions lie, and the two times the vote for that was published, it was actually SEVEN judges who voted in favor of letting the lower court decisions stand. In fact, up until the sixth circuit disagreed, it looked like there may be a possibility the Supreme Court might not even have to hear any case, as there was no disagreement. Scores of judges had already ruled in favor of marriage equality. If there was no disagreement, the Supreme Court wouldn’t have even taken it up.
In addition, there were quite a number of cases in other circuits that didn’t make it all the way to the Supreme Court, but they too were almost unanimous is ruling in favor of marriage equality (save one judge in Louisiana). Those too were heard by numerous judges. (What attire they wore, I cannot attest to each instance, but I won’t make the case it made any difference.)
So as a history lesson, here’s the path they took to get up to the Supreme Court, how the judges rules, and who appointed them to the bench (since certain people seem to define “liberal” or “conservative” based on who appointed them to the court).
The fourth circuit
- Virginia, July 28, 2014, Bostic v. Schaefer, judge Arenda Wright Allen (appointed by Obama) rules in favor of marriage equality
- North Carolina, October 10, 2014, General Synod of the United Church of Christ v. Cooper, judge Max Cogburn Jr (appointed by Obama) rules in favor of marriage equality
- South Carolina, November 12, 2014, Condon v. Haley, judge Richard Gergel (appointed by Obama) rules in favor of marriage equality
- Upon appeal, the fourth circuit affirmed the district decisions in a 2-to-1 ruling
- Without comment, the Supreme Court refused to hear the case, letting the lower rulings stand and made marriage equality law of the fourth circuit
The seventh circuit
- Indiana, June 25, 2014, Baskin v. Bogan, judge Richard Young (appointed by Clinton) rules in favor of marriage equality
- Wisconsin, Wolf v. Walker, judge Barbara Crabb (appointed by Carter) rules in favor of marriage equality
- Upon appeal, the seventh circuit (with judges appointed by Reagan, Obama and Clinton) affirmed the district decision in a unanimous ruling
- Without comment, the Supreme Court refused to hear the case, letting the lower rulings stand and made marriage equality law of the seventh circuit
The ninth circuit
- Nevada, November 26, 2012, Sevcik v. Sandoval, judge Robert Jones (appointed by W Bush) rules against marriage equality
- Idaho, May 13, 2014, Latta v. Otter, judge Candy Dale (appointed by W Bush) rules in favor of marriage equality
- Oregon, May 19, 2014, Geiger v. Kitzhaber, judge Michael McShane (appointed by Obama) rules in favor of marriage equality. (The state did not appeal the ruling)
- Arizona, October 17, 2014, Connolly v. Jeanes and Majors v. Home, judge John Sedwick (appointed by HW Bush) rules in favor of marriage equality. (The state did not appeal the ruling.)
- Montana, November 19, 2014, Rolando v. Fox, judge Brian Morris (appointed by Obama) rules in favor of marriage equality
- Alaska, Hamby v. Parnell, October 12, 2014, judge Tim Burgess (appointed by W Bush) rules in favor of marriage equality
- Upon appeal, the ninth circuit affirmed the district decision in a 3-to-0 ruling
- Without comment, the Supreme Court refused to hear the case, letting the lower rulings stand and made marriage equality law of the ninth circuit
The tenth circuit
- Utah, Kitchen v. Herbert, judge Robert Shelby (appointed by Obama) rules in favor of marriage equality.
- Colorado, July 1, 2014, Burns v. Hickenlooper, judge Raymond Moore (appointed by Obama) rules in favor of marriage equality.
- Oklahoma, July 18, 2014, Bishop v. United States, judge Terence Kern (appointed by Clinton) rules in favor of marriage equality.
- Wyoming, October 17, 2014, Guzzo v. Mead, judge Scott Skavdahl (appointed by Obama) rules in favor of marriage equality
- Kansas, November 4, 2014, Marie v. Moser, judge Daniel Crabtree (appointed by Obama) rules in favor of marriage equality
- Upon appeal, the 10th circuit affirmed the district decision in a 2-to-1 ruling
- Without comment, the Supreme Court refused to hear the case, letting the lower rulings stand and made marriage equality law of the tenth circuit
The sixth circuit
- Ohio, July 22, 2013, Obergefell v. Hodges, judge Timothy Black (appointed by Obama) rules in favor of marriage equality
- Michigan, March 21, 2014, DeBoer v. Snyder, judge Bernard Friedman (appointed by Reagan) rules in favor of marriage equality
- Kentucky, July 1, 2014, Love v. Beshear, judge John Heyburn (appointed by HW Bush) rules in favor of marriage equality.
- Tennessee, March 14, 2014, Tanco v. Haslam, judge Aleta Trauger (appointed by Clinton) rules in favor of marriage equality
- Upon appeal, the 6th circuit overturned the district decision in a 2-to-1 ruling
- The Supreme Court agreed to take up the case upon appeal
The fifth circuit
- Texas, February 26, 2014, De Leon v. Perry, judge Orlando Luis Garcia (appointed by Clinton) rules in favor of marriage equality
- Louisiana, September 3, 2014, Robicheaux v. George, judge Martin Feldman (appointed by Reagan), ruled against marriage equality, the first lower judge post-Windsor to do so
- Missisippi, November 25, 2014, Campaign for Southern Equality v. Bryant, judge Carlton Reeves (appointed by Obama) rules in favor of marriage equality
- These decisions were appealed, and arguments were heard, but the case was put on hold pending the Supreme Court decision in Obergefell
The eighth circuit
- Missouri, November 7, 2014, Lawson v. Kelly, judge Ortrie Smith (appointed by Clinton) rules in favor of marriage equality
- South Dakota, January 12, 2015, Rosenbrahn v. Daugaard, judge Karen Schreier (appointed by Clinton) rules in favor of marriage equality
- Nebraska, March 2, 2015, Waters v. Heineman, judge Joseph Bataillon (appointed by Clinton) rules in favor of marriage equality
- Appeals were on hold pending the Supreme Court Decision in Obergefell
The eleventh circuit
- Florida, August 21, 2014, Brenner v. Scott, judge Robert Hinkle (appointed by Clinton) rules in favor of marriage equality
- Alabama, January 23, 2015, Searcy v. Strange, judge Callie Granade (appointed by W Bush) rules in favor of marriage equality
- Appeals were on hold pending the Supreme Court Decision in Obergefell
As you can, it clearly was not “five judges” who heard that case. It was 43 judges, representing 31 states across eight circuits, judges liberal and conservative ruling in favor of marriage equality. In fact, of all those 43 judges, a mere 6 ruled against marriage equality, 6 of 43 judges it went up against. The judicial history is so overwhelmingly for marriage equality, it would have been unprecedented for the high court to overturn that.
Anyone who claims it was “five judges,” well, you’re just being deliberately ignorant of your history.
