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For First Time, State Bans on Same-Sex Marriage Upheld by Appeals Court

Get ready for a Supreme Court showdown after Sixth Circuit says two judges shouldn't make a decision for 32 million citizens.
For First Time, State Bans on Same-Sex Marriage Upheld by Appeals Court
Image: JD Hancock/Flickr

An Ohio court has given the US Supreme Court an offer on same-sex marriage that the high court likely can't refuse.

After the Supreme Court sidestepped the issue of a national right to same-sex marriage in 2013, experts on both sides predicted the court would intervene in October. The high court had several promising cases to choose from, but decided to stay on the sidelines. All pending appeals were rejected without explanation.

Yesterday, the Sixth Circuit Court of Appeals in Cincinnati became the likely game changer.

In a 2-1 split decision hailed by the National Organization for Marriage as a "tremendous victory," the Sixth Circuit ruled that states do have the authority to set rules for marriage in several areas. All six statutory and constitutional provisions were upheld relating to: same-sex marriage bans, refusing recognition of out-of-state marriages, denying adoption, and not allowing two same-gender spouses on birth and death certificates.

The cases at hand came out of Michigan, Kentucky, Ohio, and Tennessee.

“Our judicial commissions did not come with such a sweeping grant of authority,” Judge Jeffrey S. Sutton wrote in the decision, “one that would allow just three of us—just two of us in truth—to make such a vital policy call for 32 million citizens who live within the four states of the 6th Circuit."

Sutton noted:

When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better, in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.

The decision deems it “dangerous and demeaning to the citizenry” if judges feel they are the only ones capably of fairly understanding same-sex marriage. Sutton goes on to say his “hands are tied” by a 1972 one-sentence Supreme Court ruling which “upheld the right of the people of a state to define marriage as they see it.”

The same logic was used by the Eighth Circuit in 2006, the First Circuit in 2012, and last month by a federal district judge in Puerto Rico.

The decision creates a “stark” 4-1 split among the federal circuit courts. Since 2013's Windsor decision, the Fourth, Seventh, Ninth, and Tenth Circuits have all struck down state bans on same-sex marriage.

Currently same-sex marriage is legal in 32 states. Many experts, including an active justice on the Supreme Court, are saying the Sixth Circuit’s decision could force the Supreme Court’s hand.

Justice Ruth Bader Ginsburg recently spoke at the University of Minnesota, saying, “Now if that court should disagree with the others then there will be some urgency in the [Supreme] Court taking the case.”

The plaintiffs now have two options: appeal to the full Sixth Circuit or go directly to the Supreme Court. Since the Sixth Circuit is mostly conservative, Dana Nessel, lead attorney for two clients involved, said they are, “going straight to the Supreme Court.”

“We feel absolutely confident that the US Supreme Court will accept one of the cases out of the Sixth Circuit, most likely Michigan or Kentucky,” she said.

"The US Supreme Court will have the final word on this issue. The sooner they rule, the better,” Michigan attorney general Bill Schuette said in response to the decision.

If the Supreme Court declines to take a case from the Sixth Circuit, the next candidate could come from Puerto Rico through the First Circuit.

[Photo courtesy of JD Hancock - Flickr]

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