By a 2-1 vote, with Judge Jeffrey Sutton writing the opinion, the Sixth Circuit has upheld state prohibitions on same-sex marriages in the states of Ohio, Kentucky, Michigan, and Tennessee. Given that four other circuits have come out the other way, and that same-sex marriages are proceeding in 32 states, this is the case that produces the circuit split likely to be resolved by the Supreme Court. If petitions for certiorari are filed soon, as I expect they would be, we could still be on track for argument this Term and decision by the end of June 2015.
Lyle Denniston explains that the “challengers in the cases in the four states of the Sixth Circuit now have two legal options”:
First, they can ask the full Sixth Circuit bench (the en banc court) to reconsider their cases, and if the court does that, then the panel decision released Thursday would be wiped out and the en banc court would start fresh. The loser at that level could then seek Supreme Court review.
Second, the challengers can now move directly to the Supreme Court; they do not have any legal obligation to seek further review in the Sixth Circuit Court. If they take that path, it would be up to the Justices to decide for or against review, and it would take the votes of only four of the nine Justices to agree to hear the case.
One of the key arguments in the ruling:
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.
Mark Joseph Stern pounces on this passage:
Sutton, a George W. Bush appointee, had described these concerns during oral argument last August, and they clearly guided his vote here. Predictably, Sutton also harps upon the brief portion of United States v. Windsor that dealt with states’ rights—while largely overlooking its concern with the dignity of gay people. In Windsor, the court held that a federal gay marriage ban “degrade[s],” “demean[s],” and “disparage[s]” gay people. Yet Sutton is unconcerned that gay marriage bans might “demean” gay people; rather, he frets that overturning such a ban would be “demeaning to the democratic process.”
Howard Wasserman further unpacks Sutton’s ruling:
Say this: Sutton hit every possible argument and issue surrounding marriage equality (although he soft-pedaled his discussion of the “marriage is for men and the women they accidentally knock-up” argument). So the opinion presents a good vehicle for thorough consideration (and reversal).