UPDATED 9:56 p.m. The American Civil Liberties Union, one of the legal advocacy groups involved in the case, said “we will be filing for Supreme Court review right away.” Presumably, the other attorneys involved will coordinate their filings, although each case is likely to be appealed separately.

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Breaking ranks with a wide array of other federal courts, and coming close to setting up almost certain review by the Supreme Court, a divided federal appeals court in Cincinnati on Thursday upheld bans on same-sex marriage in four states. Dividing two to one, the U.S. Court of Appeals for the Sixth Circuit overturned lower-court rulings in cases from Kentucky, Michigan, Ohio, and Tennessee.

Probably the only way that this ruling would not predictably lead to Supreme Court review, it appears, is if there is a request for en banc review in the Sixth Circuit, and that request is granted.

The decision was based largely on the two-judge majority’s view that the question whether to move the nation toward same-sex marriage in every state is for the people or the states, and not for judges applying the national Constitution.

Circuit Judge Jeffrey S. Sutton, the author of the main opinion, wrote: “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.”

The opinion was joined by Circuit Judge Deborah L. Cook. Senior Circuit Judge Martha Craig Daughtrey dissented, calling the Sutton opinion “an introductory lecture in political philosophy,” but one that failed, as an appellate court decision, “to grapple with the relevant constitutional issue in this appeal.”

At this point, the decision conflicts directly with federal appeals courts in the Fourth, Seventh, Ninth, and Tenth Circuits — precisely the kind of division of judgment that ordinarily will lead the Supreme Court to step in to resolve the split, especially on an issue of fundamental constitutional significance.

So far, the Court has passed up review of any of the lower-court decisions striking down state bans that it has considered, and it has even refused recently to put lower-court decisions on hold until appeals could be filed and decided by the Justices. In widely reported public comments, Justice Ruth Bader Ginsburg has indicated that the main reason the Court had bypassed the cases up to this point was that there was no current split among the courts of appeals.

Now there is a split, and it is a stark one.

In one sweeping decision, the Sixth Circuit has given all of the states in its geographic region a victory for their bans on both initial marriages of same-sex couples and official recognition of such marriages performed outside of the couples’ home states. By contrast, other federal courts have nullified identical bans in thirteen states just over the past few months, with the prospect that the number would soon rise to sixteen — for a total of thirty-five states, plus Washington, D.C., allowing such marriages.

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. If it does so, 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. If they take that path, it would be up to the Justices to decide whether to review the Sixth Circuit’s ruling, and it would take the votes of only four of the nine Justices to agree to hear the case.

One argument for going directly to the Supreme Court has already been made, by advocacy groups and lawyers on both sides of this constitutional controversy: that is, that now is the time to get the constitutional issue resolved, once and for all.

If the challengers wait until the Sixth Circuit went through en banc review (assuming that option were granted), the issue almost certainly would not reach the Supreme Court for consideration in the current Term. Other courts of appeals are considering the issue, but they are moving more slowly and thus almost certainly would not decide their cases in the current calendar year.

If a case is filed with the Justices soon, by contrast, it could be heard and decided before the Justices complete this Term early next summer. Any case that the Justices accept for review by mid-January almost certainly would be decided in the current Term.

As lawyers in cases filed with the Supreme Court this past summer showed, they can put together appeals and file all of the necessary papers on a very tight schedule. They might have to do that again with the Sixth Circuit cases.

Of course, the challengers in the four states in the Sixth Circuit have the option of each filing their own separate appeal — either to the en banc Sixth Circuit or to the Supreme Court, and that might be the more likely tactic, because each case has different facts even though the basic constitutional issue is basically the same in each case — do the states have the constitutional authority to refuse to allow same-sex marriages or to refuse to recognition existing same-sex marriages?

The Sixth Circuit answered both parts of that question in the affirmative. The cases as a group involved both same-sex couples seeking to marry and married same-sex couples seeking recognition by their states.

The Sixth Circuit’s majority opinion reached its result through these specific steps:

* It ruled that the Supreme Court’s one-line decision in the 1972 case of Baker v. Nelson, saying that a challenge to a state ban on same-sex marriage did not raise “a substantial federal question,” is a still intact precedent, and it binds the lower courts.

* It found that the Supreme Court’s 2013 decision in United States v. Windsor, striking down a part of the federal Defense of Marriage Act, did not disturb that 1972 precedent.

* It relied upon the Supreme Court’s comment in the Windsor decision that the Court was not providing an answer to the basic question of state authority to impose bans on same-sex marriages. It also interpreted that decision as being primarily about federalism, and the need to respect the prerogatives of the states to define marriage.

* It commented that the Justices’ October 6 refusal to grant review of any of the same-sex marriage appeals before it then does not end the debate over state authority in this field.

* It rejected the reasoning of all of the other federal court rulings striking down state bans, and it said that they involve a wide array of reasoning. And it rejected the theories of the challengers in bringing those cases, saying that “not one” of those “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.”

* It said it was guided by the history of state power to define marriage, which it said was an unbroken definition that this was open to opposite-sex couples, from the founding of the nation right up to 2003, when the Massachusetts Supreme Judicial Court struck down that state’s ban.

* It declared that the state bans were to be evaluated using the “rational basis” test — the most lenient of the constitutional standards for judging claims of discrimination. It conceded that this test set a “low bar.” And it concluded that state bans have at least two rational foundations: first, the regulation of sex between men and women, with the promotion of marriage between them as a way to establish stable family relationships; and, second, a state’s desire to wait and see before changing the norm of opposite-sex marriage.

* It found that none of the bans adopted by voter-approved ballot measures in the four states involved in the cases had been enacted out of hostility (“animus”) toward gays and lesbians, but rather sought only to codify long-standing social norms about marriage, already reflected in state laws. It also commented that it was difficult to assess the motives of the 8.6 million people in the four states who voted for those measures.

* It concluded that what the same-sex couples were seeking was a fundamental right to “gay marriage,” and that does not exist under the Constitution. The route of recognizing gay marriage through the Constitution, it said, “does not exist.” It thus rejected the argument of advocates of same-sex marriage that they were seeking only an equal right to enter an institution open to others. Even the Supreme Court’s 1967 decision in Loving v. Virginia, for the first time allowing couples of different races to marry, did not provide a new definition of traditional marriage, it said.

* It ruled that bans on same-sex marriage would not violate the constitutional ban on discrimination based on gender. Gays and lesbians, it said, have not been recognized by the Supreme Court as a discrete class deserving of special constitutional protection as historic targets of discrimination.

* It concluded that it was up to the nation’s people, not to its courts, to decide when “the time is right to recognize” a new and more expansive interpretation of rights under the Constitution. “The federal courts,” it said, “have no long-lasting capacity to change what people think and believe about new social questions.” Victories by gay rights advocates through initiatives and legislation, it remarked, would lead to “greater acceptance” of those goals.

* Finally, turning to the question of state authority to refuse to officially recognize same-sex marriages performed in other states, it found that “states have always decided for themselves when to yield to laws of other states.”

Recommended Citation: Lyle Denniston, Sixth Circuit: Now, a split on same-sex marriage, SCOTUSblog (Nov. 6, 2014, 4:50 PM), https://www.scotusblog.com/2014/11/sixth-circuit-the-split-on-same-sex-marriage/