A panel of the US Court of Appeals for the Sixth Circuit upheld same-sex marriage bans in Michigan, Ohio, Tennessee and Kentucky. The 2-1 decision, issued on Thursday, makes it more likely that the US Supreme Court will review the constitutionality of marriage equality bans – perhaps as early as this Term. 

Last month, the Supreme Court denied review of the issue. Experts explained that the denial of review was not unusual because the federal Courts of Appeal had not split on the issue; all of the lower courts at that time had ruled that same-sex bans were unconstitutional. This Sixth Circuit, however, has changed the legal landscape, becoming the first federal Court of Appeals to uphold a ban since the US Supreme Court decided US v. Windsor, striking down Section 3 of the federal Defense of Marriage Act (DOMA)

Although same-sex marriage is now legal in 32 states, Judge Jeffrey S. Sutton, joined by Judge Deborah L. Cook, both George W. Bush appointees, relied heavily on “tradition” to uphold same-sex marriage bans, calling same-sex marriage a “new social issue” that must be decided through the democratic process. Writing in dissent, Judge Martha Craig Daughtrey, a Clinton appointee, blasted the majority for failing to address the central issue in the appeal: whether same-sex marriage bans violate the US Constitution.

“The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy,” Judge Daughtrey wrote. “But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal. In the main, the majority treats both the issues and the litigants here as mere abstractions. Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win’the hearts and minds’ of Michigan, Ohio, Kentucky, and Tennessee voters to their cause.”

Judge Daughtrey noted, however, that the plaintiffs were not “political zealots,” but instead were ordinary citizens “who want to achieve equal status” by “exercising a civil right that most of us take for granted – the right to marry.”

Chase Strangio, an attorney with the American Civil Liberties Union (ACLU), one of the legal organizations representing the plaintiffs, indicated that the ACLU would immediately appeal the case to the US Supreme Court, explaining that the majority decision, “is an outlier that’s incompatible with the 50 other rulings that uphold fairness for all families, as well as with the Supreme Court’s decision to let marriage equality rulings stand in Indiana, Wisconsin, Utah, Oklahoma, and Virginia.”

“It’s wholly unconstitutional to deny same sex couples and their families access to the rights and respect that all other families receive,” Strangio continued. “We will be filing for Supreme Court review right away and hope that through this deeply disappointing ruling we will be able to bring a uniform rule of equality to the entire country.”

Media Resources: US Circuit Court for the Sixth Circuit 11/6/14; SCOTUS Blog 11/7/14; American Civil Liberties Union 11/6/14; Freedom to Marry; Autostraddle 11/6/14

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