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The path to the Supreme Court for same-sex marriage

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The legal battle over same-sex marriage, and whether marriage is a fundamental right for all couples, gay or straight, seems destined to return to the Supreme Court, with cases and appeals inexorably winding their way through courts across the country.

In what could be a pivotal moment in the push to have the Supreme Court resolve an issue it left unanswered last year, a federal appeals court in Cincinnati is set to hear a host of arguments on the topic on Wednesday. The U.S. Court of Appeals for the 6th Circuit will hear arguments regarding six cases from four states, a flurry of legal activity that could play a role in how quickly the Supreme Court intervenes.

Ultimately, the heart of the legal argument is whether or not the right to marry must be extended to everyone. The Supreme Court considered same-sex marriage last year, ruling that all couples — homosexual and heterosexual — must receive the same benefits in states where same-sex marriage is legal. But the court did not issue a broader ruling saying that all couples in all states should be able to get married, so attorneys and activists have continued pushing to have the court consider this question.

In the wake of the court’s ruling (in United States v. Windsor), there has been an unbroken string of cases in which federal courts struck down state bans on same-sex marriage. But it appears possible that the court in Cincinnati could break that streak, owing to the makeup of the panel of judges. Two were nominated by President George W. Bush, while the other was nominated by President Bill Clinton. Still, if the panel upholds a same-sex marriage ban, a split among circuit courts could push the issue to the Supreme Court sooner.

Here are the cases that will be discussed on Wednesday. (For legal briefs and additional background documents on these cases, visit Freedom to Marry, a campaign to make same-sex marriage legal nationwide.)


A federal judge ruled in February that Kentucky must recognize same-sex marriages performed in states where same-sex marriage is legal. The same judge ruled in July that the state’s ban on same-sex marriage was unconstitutional, though this ruling is stayed pending an appeal to the 6th Circuit. Jack Conway, the Kentucky attorney general, said he wouldn’t appeal these rulings because doing so would be “defending discrimination.” Instead, Gov. Steve Beshear (D) hired a law firm to appeal the decision.


In March, a federal judge struck down the state’s ban on same-sex marriage. Unlike other judges who had struck down the bans before him, U.S. District Judge Bernard A. Friedman did not stay his decision; as a result, hundreds of couples rushed to local courthouses to get married in the hours before a federal appeals court ordered that the ruling be held.


A judge ruled last year that death certificates in Ohio must recognize same-sex marriages performed in other states. The same judge, District Court Judge Timothy Black, followed that by ruling in April that Ohio has to recognize same-sex marriages performed in other states. The state’s same-sex marriage ban remained in place, preventing such marriages from actually being performed in Ohio. Hundreds of supporters of same-sex marriage rallied in Cincinnati on Tuesday night, including the plaintiffs in one of the cases and former Ohio governor Ted Strickland.


A judge ruled in March that the state has to recognize three same-sex marriages performed in other states, a limited ruling noting that the couples in this case were likely to succeed in seeking official recognition. All signs point to the likelihood “that proscriptions against same-sex marriage will soon become a footnote in the annals of American history,” U.S. District Judge Aleta Trauger wrote. The state argued against this logic and said in a brief to the circuit court that Tennessee’s ban on same-sex marriage don’t violate the constitutional rights of the couples.

Other appeals court cases:

In addition, federal appeals courts will hear appeals from six states in the future. The U.S. Court of Appeals for the 7th Circuit will hear appeals from Indiana and Wisconsin on Aug. 26, while the U.S. Court of Appeals for the 9th Circuit will hear appeals from Nevada, Hawaii and Idaho on Sept. 8. The U.S. Court of Appeals for the 5th Circuit will also hear an appeal from Texas at an unspecified date.

Two appeals courts have ruled so far: An appeals court in Denver struck down the Utah ban, while an appeals court in Richmond similarly struck down a ban in Virginia. This week, Utah asked the Supreme Court to decide if same-sex couples have a constitutional right to marriage, while Virginia said it would file a similar request.

Mark Berman covers national news for The Washington Post and anchors Post Nation, a destination for breaking news and stories from around the country.
Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.

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