Ruling by sixth circuit court of appeals against Michigan, Ohio, Kentucky and Tennessee sets up prospect of US supreme court taking up the issue

A US appeals court upheld same-sex marriage bans in four states on Thursday, bringing to an end a streak of victories for activists fighting to extend gay rights across the country and setting up a likely supreme court battle on the issue.

The decision by the sixth circuit court of appeals in Cincinnati, known as a conservative court, means that same-sex marriage remains illegal in Ohio, Michigan, Kentucky and Tennessee.

“Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea,” wrote judge Jeffrey Sutton, for a two-to-one majority.



Thursday’s decision makes it more likely that the US supreme court will take up the issue, due to conflicting rulings among appeals courts.

Since the supreme court struck down the Defense of Marriage Act last year, federal courts had issued a string of rulings in favor of same-sex marriage. Campaigners on both sides have asked the supreme court to pick up the issue and make a final decision on its constitutionality.

In early October, however, the supreme court declined to hear seven cases arising from lower appeals courts, a decision that resulted in a significant expansion of same-sex marriage across the US. It is now legal in 32 states.

One of the supreme court justices, Ruth Bader Ginsburg, suggested recently that a dissenting opinion from a circuit court would push the high court to take up a case. She said in September that if the sixth circuit court allows the ban to stand, “there will be some urgency” for the nation’s highest court to intervene.

In Thursday’s ruling, Sutton, a former clerk for conservative supreme court justice Antonin Scalia, said it was not for the courts to decide on the legality of same-sex marriage. However the judge said that it should be left to the legislative process. “The question is not whether American law will allow gay couples to marry; it is when and how that will happen.”

The cases presented to the court range from complaints against state adoption policies for same-sex couples, state definitions of marriage and state bans on recognising same-sex marriages conducted out-of-state.

Sutton conceded that bans on same-sex marriage deprive gay couples, as well as the children of such couples, from “profound” and “mundane” benefits, but that it is not the panel’s job to determine how that rationale weighs against opposing arguments.

“Do the benefits of standing by the traditional definition of marriage make up for these costs?” Sutton wrote. “The question demands an answer – but from elected legislators, not life-tenured judges.”

Sutton also wrote a scathing criticism of his fellow judges who have struck down the bans in other jurisdictions. “Today, my colleagues seem to have fallen prey to the misguided notion that the intent of the framers of the United States constitution can be effectuated only by cleaving to the legislative will and ignoring and demonizing an independent judiciary,” he wrote.

He said the responsibility of the three-judge panel was to determine whether it was constitutional for federal courts to decide on the legality of gay marriages, or if it should be determined state-by-state.

His ruling was supported by judge Deborah Cook, both appointees of George W Bush. Judge Martha Craig Daughtrey, an appointee of Bill Clinton, dissented from the ruling.

Legal experts believe the issue is now almost certain to be heard by the nation’s highest court, because of the division among the lower jurisdictions. “It’s virtually inconceivable that the supreme court will not take the issue up,” said Steve Sanders, a law professor at Indiana University at Bloomington’s Maurer school of law.



Freedom to Marry founder and president Evan Wolfson called on the supreme court to intervene and said the sixth circuit’s decision would not stand the test of time.“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,” Wolfson said in a statement.

The Human Rights Campaign called the decision “shameful” and also called on the supreme court to intervene.

“The legacies of judges Deborah Cook and Jeffrey Sutton will forever be cemented on the wrong side of history,” said HRC president Chad Griffin. “Today the sixth circuit stood in the way of a path constructed by two dozen federal court rulings over the last year – a path that inevitably leads to nationwide marriage equality.”