SCOTUS May Be Forced to Act After Gay Marriage Bans Upheld in 4 States


A panel on a federal appeals court in Cincinnati has ruled 2-1 that gay marriage bans in Kentucky, Michigan, Ohio and Tennessee can remain in place. The ruling from the U.S. Court of Appeals for the Sixth Circuit overturned lower courts who all said that gay marriage bans are unconstitutional; it’s also the exact opposite of what every other circuit court in the United States has found. In other words, this ruling will pretty much force the Supreme Court to take up the issue of gay marriage, something they haven’t seemed eager to do.

The ruling, written by George W. Bush appointee Judge Jeffrey Sutton, was issued Thursday. Sutton argued that it’s not the courts’ job to make decisions about the legality or constitutionality of gay marriage, or, as he puts it, to make “such a fundamental change to such a fundamental social institution.” In her dissent, Judge Martha Craig Daughtrey accused Sutton and the other Judge on the panel, Deborah L. Cook, of treating gay marriage plaintiffs as “mere abstractions.”

“Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably,” she wrote, “when they should be out campaigning to win ‘the hearts and minds’ of Michigan, Ohio, Kentucky, and Tennessee voters to their cause.”

Dale Carpenter, a professor of constitutional law at the University of Minnesota, tells the New York Times that the ruling pretty much fast-tracks the issue to SCOTUS: “It’s entirely possible that we could have oral arguments in coming months and a Supreme Court decision by next summer.”

This hasn’t come before the Supremes before simply because they’ve declined in the past to hear appeals in marriage equality cases from other circuit courts. That’s allowed rulings in favor of gay marriage to take effect. But according to the Times, Her All Seeingness Justice Ruth Bader Ginsburg said in September that this Sixth Circuit case would likely be the one to force them to weigh in: “Now if that court should disagree with the others then there will be some urgency in the court taking the case,” she told an audience. “Sooner or later, yes, the question will come to the court.”

Dueling protests in Cincinnati in August, just before the Sixth Circuit began hearing the case. Photo via AP Images

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