From Robert Barnes at The Washington Post:
A panel of the U.S. Court of Appeals for the 6th Circuit upheld same-sex marriage bans in four states Thursday afternoon, creating a split among the nation’s appeals courts that almost surely means the Supreme Court must take up the issue of whether gay couples have a constitutional right to marry.
The panel ruled 2 to 1 that while gay marriage is almost inevitable, in the words of U.S. Circuit Judge Jeffrey Sutton, it should be settled through the democratic process and not the judiciary. The decision overturned rulings in Michigan, Ohio, Tennessee and Kentucky, and makes it the first appeals court to uphold state bans since the Supreme Court in 2013 struck down part of the federal Defense of Marriage Act.
I expect Barnes’s report to be updating here. Here’s is a link to the 6th Circuit’s decision.
This is big news. This is the kind of conflict among federal courts that the Supreme Court has to step in and resolve. If SCOTUS stays on their current trajectory, they could issue a decision that would make gay marriage legal in all 50 states. Stay tuned.
It won’t go to the Supreme Court immediately. The petitioners will likely request en banc review, where the case will be reheard by the full court. In this instance, where four other regional circuits have taken contrary views and certiorari was denied, it is quite likely that the this case will be heard en banc before it goes to the Supreme Court. Judges Sutton and Cook (who made up the 2-1 majority) are among the most conservative and most ideological members of the court. It is quite possible that the more moderate Republican appointees on the court would not agree.
Further, Judge Sutton just guaranteed that no Republican President will ever appoint him to the Supreme Court. After all, his opinion upholding the constitutionality of Obamacare had already angered many fiscal conservatives. Sutton would have been on the short list of any Republican President. He is now too toxic to touch.
I just finished reading Judge Sutton’s opinion and Judge Daughtrey’s dissent. Even though I believe same-sex marriage to reflect an unwise cultural development, I found Judge Sutton’s opinion to be rather unpersuasive. Its logic largely rests on the assumption that Baker v. Nelson is binding precedent–an assumption that’s rather difficult to support. After all, the defenders of DOMA in Windsor had relied extensively on Baker, and those arguments were rejected.
The ACLU has announced that they will file a petition for certiorari in at least one of the seven consolidated cases. Given that there are seven separate cases at issue here, certain plaintiffs may seek review by the Supreme Court while others seek en banc review by the full Sixth Circuit.