Correction: An earlier version of this article misstated the first name of one of the jurists on the panel. She is Senior Circuit Judge Martha Craig Daughtrey. This version has been corrected.
A federal appeals court panel upheld bans on same-sex marriage in four states Thursday, a break with other federal courts that makes it almost certain the Supreme Court must take up the issue of whether gay couples have a constitutional right to marry.
A panel of the U.S. Court of Appeals for the 6th Circuit in Cincinnati ruled 2 to 1 that although same-sex marriage across the nation is practically inevitable, in the words of U.S. Circuit Judge Jeffrey S. Sutton, it should be settled through the democratic process and not the judicial one.
The decision overturned lower-court rulings in Michigan, Ohio, Tennessee and Kentucky and makes the 6th Circuit the first appeals court to uphold state bans since the Supreme Court struck down part of the federal Defense of Marriage Act in 2013.
The Supreme Court began its term last month by declining to hear appeals of decisions that had gone the other way, and that move to let the rulings stand greatly expanded the number of states in which same-sex couples may marry.
The court did not explain its reasoning at the time, but Justice Ruth Bader Ginsburg has said in interviews that there was no reason for the court to jump in to settle a controversy unless there was disagreement among the lower courts.
The 6th Circuit’s decision provides that. And the next question is whether the process moves quickly enough that the court takes up the issue this term, which would mean a decision by early summer.
Both winners and losers in the cases said they were eager to expedite the process to let the high court have its say.
Sutton, writing for himself and Judge Deborah L. Cook, rejected the analysis of the Supreme Court’s decision in U.S. v. Windsor that has led other appeals courts to strike the bans on same-sex marriage. He repeatedly returned to the principle of democratic action, saying advocates of same-sex marriage would be better off by persuading their fellow citizens than by asking federal judges to force the issue.
“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,” Sutton wrote.
“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.”
Sutton, a favorite of the conservative legal establishment and frequently mentioned as a potential Supreme Court nominee under a Republican president, was nominated by President George W. Bush. Cook was also nominated by Bush.
Senior Judge Martha Craig Daughtrey said in a sharply worded dissent that Sutton’s opinion “would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy.” But she said federal judges are required to protect the constitutional rights of the minority.
“If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams,” wrote Daughtrey, who was chosen for the bench by President Bill Clinton.
The decision came three months to the day after oral arguments in the cases, and both the majority opinion and dissent seemed to be the kind of forceful, carefully crafted jurisprudence that is written with the expectation of Supreme Court review.
While it is possible the full 6th Circuit could take up the issue — a delay that would mean the Supreme Court would not receive the cases in time to hear them this term — lawyers on both sides of the case pledged to move quickly.
“We believe it’s wholly unconstitutional to deny same sex couples and their families access to the rights and respect that all other families receive,” Chase Strangio, staff attorney in the ACLU Lesbian Gay Bisexual and Transgender Project, said in a statement. “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.”
Michigan Attorney General Bill Schuette (R), who lost at the district court and won in Thursday’s ruling, praised the decision but said he, too, hoped for a quick resolution.
“As I have stated repeatedly, the U.S. Supreme Court will have the final word on this issue,” Schuette said in a statement. “The sooner they rule, the better, for Michigan and the country.”
The justices showed last month that they were in no hurry. Despite the urging of those on both sides of the issue, 30 states and some of America’s biggest corporations, the court passed up cases brought from Virginia, Utah, Oklahoma, Indiana and Wisconsin, where bans on same-sex marriage had been struck down.
Soon after, another appeals court ruled that the bans were unconstitutional. Put together, there are 35 states and the District positioned through legislative action or judicial ruling to allow and recognize same-sex marriage.
Lower courts around the country have been analyzing the Supreme Court’s 5-to-4 Windsor decision from June 2013. That ruling struck down the part of the Defense of Marriage Act that withheld federal recognition of same-sex marriage performed in those states where it was legal. But it did not address the issue of whether the states themselves could ban such marriages or whether they could refuse to recognize them.
All but a handful of federal judges who have considered the issue after Windsor have said Justice Anthony M. Kennedy’s soaring rhetoric about the “dignity” of married gay couples and their children compels the finding that state bans violate constitutional rights.
But one federal judge upheld Louisiana’s ban, and Sutton said Windsor does address the issues in the current case.
“Windsor hinges on the Defense of Marriage Act’s unprecedented intrusion into the States’ authority over domestic relations,” Sutton wrote.
Sutton declined, in contrast to other judges, to compare same-sex marriage bans to the prohibitions on interracial marriage that the Supreme Court struck down in 1967’s Loving v. Virginia and said it was rational for states to want to go slowly in endorsing a concept of marriage that did not exist in the nation until 11 years ago.
But he returned frequently to advances that proponents of same-sex marriage have made and said continued change is better made through the political process.
“From the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen,” Sutton wrote, making the question: “Who decides?”
Daughtrey responded that the couples who brought the suits were not “political zealots trying to push reform on their fellow citizens.”
Instead, she said, they were “committed same-sex couples, many of them heading up de facto families, who want to achieve equal status . . . with their married neighbors, friends, and coworkers.”