WASHINGTON — The 6th Circuit Court of Appeals upheld four states' bans on same-sex couples' marriages on Thursday, splitting with the decision of four other appellate courts and likely setting up a Supreme Court showdown on the issue.
Judge Jeffrey Sutton, writing for the 2-1 majority of the court, wrote the opinion upholding the constitutionality of Kentucky, Michigan, Ohio, and Tennessee's bans — reversing trial court decisions striking down each ban, or the ban on recognition of same-sex couples' marriages granted elsewhere, below.
"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," he wrote. "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."
Specifically, Sutton wrote that the 6th Circuit — and all "inferior" courts — are still bound by the 1972 decision of the Supreme Court in Baker v. Nelson, in which the court dismissed a same-sex couple's marriage claim "for want of a substantial federal question." Many other courts, including several other appeals courts, have held that Baker is no longer good law in light of the Supreme Court's development of pro-LGBT decisions since then.
Even outside of that, however, of the constitutional claims brought by same-sex couples — including "originalism; rational basis review; animus; fundamental rights; suspect classifications; evolving meaning" — Sutton concluded, "Not one of the plaintiffs' theories, however, makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters."
Judge Deborah Cook joined Sutton's opinion, while Judge Martha Craig Daughtrey dissented from the decision.
In addressing the majority's opinion, Daughtrey examined the four other appellate opinions — from the 4th, 7th, 9th, and 10th circuits — before concluding, "[I]t would seem unnecessary for this court to do more than cite those cases in affirming the district courts' decisions in the six cases now before us."
She then added: "Because the correct result is so obvious, one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split regarding the legality of same- sex marriage that could prompt a grant of certiorari by the Supreme Court and an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens."
In responding to the entire premise of Sutton's ruling in her conclusion, Daughtrey wrote, "If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams."
In the coming days, any of the plaintiffs could ask the Supreme Court to review the decision, which — if the justice take the appeal — could set up a Supreme Court hearing on the issue this coming March and a decision expected by the end of June.
In September, in fact, Justice Ruth Bader Ginsburg discussed this possibility, noting that "some urgency" would be added to the issue if the 6th Circuit issued a ruling that differed with the others.