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A federal appeals court upheld same-sex marriages bans in four states Thursday, breaking with other federal appeals courts that have considered the issue.
In a 2-1 decision, the 6th Circuit Court of Appeals ruled that same-sex marriage bans in Kentucky, Michigan, Ohio and Tennessee are constitutional. The decision reverses rulings by federal district courts striking down same-sex marriage bans in those four states.
“In just eleven years, nineteen States and a conspicuous District, accounting for nearly forty-five percent of the population, have exercised their sovereign powers to expand a definition of marriage that until recently was universally followed going back to the earliest days of human history. That is a difficult timeline to criticize as unworthy of further debate and voting,” wrote Circuit Judge Jeffrey Sutton for the majority. “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.”
Sutton was joined by Judge Deborah Cook. Judge Martha Craig Daughtrey dissented.
“The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy,” Daughtrey wrote in her dissent. “But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment. Instead, the majority sets up a false premise—that the question before us is “who should decide?”—and leads us through a largely irrelevant discourse on democracy and federalism. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it. “
Advocates have been anxiously waiting a decision by the 6th Circuit for months. Oral arguments in the cases were heard in August, and of all the federal appeals courts to consider same-sex marriage bans in recent months, the 6th Circuit appeared most skeptical of striking down such bans.
“The legacies of Judges Deborah Cook and Jeffrey Sutton will forever be cemented on the wrong side of history,” said Human Rights Campaign President Chad Griffin in a statement.
The decision by the 6th Circuit marks the first time a federal appeals court has upheld a state ban on same-sex marriage and presents a split among the circuit courts, which could encourage the Supreme Court to once again take up the issue of same-sex marriage and decide whether the Constitution guarantees same-sex couples the right to marry. Supreme Court Justice Ruth Bader Ginsburg said in September that if the 6th Circuit allowed same-sex marriage bans to stand “there will be some urgency” for the Supreme Court to step in.
In October, the high court declined to hear cases challenging same-sex marriage bans in five states — Utah, Oklahoma, Virginia, Indiana and Wisconsin — thus allowing lower court decisions legalizing marriage equality in those states to stand. Because the Supreme Court left intact rulings by the 4th Circuit, 7th Circuit and 10th Circuit Courts of Appeals striking down same-sex marriage bans in those five states, those appeals courts’ decisions applied to six other states in those three circuits: West Virginia, North Carolina, South Carolina, Kansas, Colorado and Wyoming.
Plaintiffs can appeal today’s decision directly to the Supreme Court. They could also request a review of today’s decision by the full bench of the 6th Circuit, which can choose to grant or reject such a request. If a request is denied plaintiffs can also appeal to the Supreme Court. No matter which path is taken, all lead to the nation’s highest court.
“Today’s ruling is completely out of step with the Supreme Court’s clear signal last month, out of step with the constitutional command as recognized by nearly every state and federal court in the past year, and out of step with the majority of the American people. This anomalous ruling won’t stand the test of time or appeal,” said Evan Wolfson, founder and president of Freedom to Marry, in a statement. “But with discrimination still burdening too many families, and now with this split in the circuits, Freedom to Marry calls on the Supreme Court to swiftly take these cases, affirm the freedom to marry, and bring national resolution once and for all. American couples and their families should no longer be forced to fight court by court, state by state, day by day for the freedom and dignity that our Constitution promises.”
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