Sixth Circuit Ends Gay Marriage Winning Streak

SCOTUSBlog:

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 Daughtry 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.....
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.

 I'm definitely not a Constitutional scholar, but I can't see the Supreme Court leaving the issue up to the states.  A decision in support of the Sixth Circuit decision would throw all of the states under the other Circuits' rulings into chaos.  People married in states where the courts had ruled their bans unconstitutional may find themselves unmarried again.  The direction of the arc of history is clear in this case, and I would expect the liberal bloc on the Court, along with Justice Kennedy, to end the patchwork mess we currently have.  Judge Sutton's decision leaves the fate of thousands of citizens' civil rights in the hands of reactionaries who refuse to acknowledge the basic nature of those citizens themselves.  As I see it, the decision is a cowardly way of allowing his preferred ideology to triumph.  Anyway, I'll leave the real legal analysis to the professionals.  I'll just say that I lost some respect for the Federal Court of Appeals with jurisdiction over me today.