The Supreme Court may now be forced to deal with same-sex marriage after all, as a divided appeals court on Thursday upheld state bans.
The long-awaited decision by the U.S. Court of Appeals for the Sixth Circuit upholds the same-sex marriage bans instituted by voters in Kentucky, Michigan, Ohio and Tennessee.
The decision also sets up a conflict with rulings in other appellate circuits, where judges have struck down the bans. When appellate circuits split, the Supreme Court steps in to resolve the differences.
The Sixth Circuit's majority 2-1 decision, by Republican appointee Jeffrey S. Sutton, concluded voters should be entrusted with the decision about marriage.
"Is this a matter that the National Constitution commits to resolution by the federal courts, or leaves to the less expedient, but usually reliable work of the state democratic processes?" Sutton asked rhetorically.
Earlier this year, the Supreme Court declined to hear multiple same-sex marriage cases. The court did not offer an explanation at the time, but the lack of a division among appellate circuits was widely thought to be a reason.
Sutton acknowledged that "we cannot deny the lamentable reality that gay individuals have suffered prejudice in this country, sometimes at the hands of public officials," but added that "the states' undoubted power over marriage provides an independent basis for reviewing the laws before us with deference rather than with skepticism."
Sutton, writing for himself and Judge Deborah L. Cook, a fellow George W. Bush appointee, declared that social change is best accomplished “through the customary political processes” in which individuals can meet “not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.”
The appellate court's decision was lambasted by same-sex marriage advocates and by Judge Martha Craig Daughtrey, a Clinton administration appointee who dissented..
"The majority opinion...fundamentally misunderstands the text and history of the Fourteenth Amendment, barely engaging with the words and meaning of the Constitution," stated Constitutional Accountability Center Chief Counsel Elizabeth Wydra.
In her dissent, Daughtrey accused her two fellow judges of failing to “grapple with the relevant constitutional issue” in the combined cases. The decision conflicts with decisions reached by four other appellate circuits.
Conservative advocates praised the decision by the Cincinnati-based appellate court, whose reasoning applies only to the four affected states.
“The people of every state should remain free to affirm marriage as the union of a man and a woman in their laws,” declared Alliance Defending Freedom Senior Counsel Byron Babione. “The Constitution does not demand that one irreversible view of marriage be judicially imposed on everyone.”
The competing sides both rely on the Supreme Court’s 2013 Windsor ruling striking down part of the Defense of Marriage Act, but they lean on different parts of Justice Anthony Kennedy’s majority opinion.
Other appellate courts have taken note of Kennedy’s declaration in Windsor that a federal law prohibiting same-sex couples from obtaining federal benefits “places same-sex couples in an unstable position of being in a second-tier marriage.”
Sutton and other conservatives, though, stress Kennedy’s simultaneous insistence that marriage is traditionally a state matter.
“The federal courts,” Sutton wrote, “have no long-lasting capacity to change what people think and believe about new social questions.”
The next steps will be tactical and strategic, as same-sex advocates ponder whether to ask for the full Sixth Circuit to take up the case, or whether it will be appealed directly to the Supreme Court. If the full Sixth Circuit is asked to hear the case en banc, the issue might not reach the Supreme Court until next term.