On October 6, the Supreme Court announced that it would not take up the issue of the constitutionality of gay marriage, despite desire from both sides of the issue that it do so. One reason that it is thought to have declined to take it up is that there had not yet been a split among the U.S. Courts of Appeals, which so far have been in agreement on striking down state gay marriage ban laws. These were in the 4th, 7th, 9th and 10th Circuit Courts of Appeals. With this 6th Circuit ruling upholding state’s gay marriage bans, that split has emerged.
Court Upholds Marriage Bans in Four States
A federal appeals court in Ohio upheld on Thursday the right of four states to ban same-sex marriage, contradicting rulings by four similar courts and almost certainly sending the issue on a rapid trajectory to the Supreme Court.
The much-anticipated decision, written by Judge Jeffrey S. Sutton, an appointee of George W. Bush, overturned lower court rulings in Kentucky, Michigan, Ohio and Tennessee that were in favor of same-sex marriage.
“This is the circuit split that will almost surely produce a decision from the Supreme Court, and sooner rather than later,” said Dale Carpenter, a professor of constitutional law at the University of Minnesota. “It’s entirely possible that we could have oral arguments in coming months and a Supreme Court decision by next summer.”
Thursday’s 2-to-1 decision, by a panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati, Judge Sutton said that it appears almost inevitable that American law will allow gay couples to marry. But the more fundamental question, he wrote, is: “Who decides?”
Judge 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 over the last year by numerous other federal courts, which have held that barring same-sex marriage violates equal protection or due process clauses of the Constitution and has no convincing rationale.