By Larry Hayman
Ohio University Pre-Law Specialist, Center for Law, Justice & Culture
Becoming the first appeals court to do so since the U.S. Supreme Court decision in United States v. Windsor, the Sixth Circuit reversed four decisions by four district court judges in four states striking down same sex marriage bans. The 2-1 opinion directly conflicts with decisions from the federal appeals courts in the Fourth, Ninth, Seventh, and Tenth Circuits, setting the stage for review by the U.S. Supreme Court. Same sex marriages will thus not be recognized in Ohio, Michigan, Kentucky, and Tennessee, at least until further order from the Supreme Court.
Larry Hayman
The opinion, authored by Judge Jeffrey Sutton and joined by Judge Deborah Cook, acknowledged that there has been a sea change in the last several years regarding same-sex marriage. Indeed, the decision acknowledges, “the question is not whether American law will allow gay couples to marry; it is when and how that will happen.” In the opinion of the judges in the majority, however, that decision should be left to the 32 million citizens that live inside the four states of the Sixth Circuit to decide. “Our judicial commissions did not come with such a sweeping grant of authority,” Sutton wrote.
The decision evoked a blistering dissent from Judge Martha Craig Daughtrey. Moreover, sharply disagreeing with Sutton and Cook about the role judges should play in our system of government, she wrote, “[i]f 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.”
The plaintiffs in the case have vowed to appeal. The U.S. Supreme Court, which has discretionary review power, may, but does not have to, accept the case. Given the fact that different circuits have now reached different decisions, known as a “circuit split,” it is likely the battle is heading to the Supreme Court.
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