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Sixth Circuit Appeals Court sides with states on Gay Marriage

Sixth Circuit Appeals Court sides with states on Gay Marriage

The “Circuit Split” the Supreme Court may be waiting for.

Back in early October, pundits and marriage activists on both sides of the issue were left stranded at a fork in the road after the Supreme Court declined to hear oral arguments on several high-profile gay marriage cases. Some lawyers, including myself, weren’t particularly shocked by this given that there was no circuit split in the lower courts.

The latest decision by the Sixth Circuit, then, could be a gamechanger.

Yesterday, a three judge panel upheld same sex marriage bans in four states. The judges writing for the majority banked their opinion not on the merits of same sex marriage, but whether or not the decision to allow same sex marriage should be left to the states and the people, or to judges applying the Constitution generally.

Now, we have a “circuit split,” and an even greater likelihood that the Supremes will take on the issue and resolve the question.

via SCOTUS Blog:

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.

So far, the Court has passed up review of any of the lower-court decisions striking down state bans that it has considered, and it has even refused recently to put lower-court decisions on hold until appeals could be filed and decided by the Justices. In widely reported public comments, Justice Ruth Bader Ginsburg has indicated that the main reason the Court had bypassed the cases up to this point was that there was no current split among the courts of appeals.

Now there is a split, and it is a stark one.

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.

The Sixth Circuit, then, has left it to the states, which would make a granting of cert from the Supremes that much more interesting, and at any rate forces advocates to invest more heavily on convincing voters that marriage equality would benefit the community.

If the Court does decide to take on the issue, it’s possible that we could have a final decision sooner rather than later—if advocates are quick to file their appeals.

You can read the full opinion here.

National Review has a good line by line breakdown of the opinion here.


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Let’s pause just a moment to note that the Collectivists were the ones who were all “social issues”, and they were crushed.

I don’t know of a viable conservative candidate who was hurt by their positions on “social issues”.

And ONE BIG FAT “social issue” seems to be having a real blossoming…

“Measure 88 won more votes than anything else on the Oregon ballot. More votes than pot legalization. More than the incumbent governor, the incumbent senator or any of the six other ballot measures. The widely popular, landslide vote on Measure 88 prohibits illegal immigrants from getting drivers licenses.”
—Ann Coulter

America is waking up to some realities.

    JimMtnViewCaUSA in reply to Ragspierre. | November 7, 2014 at 11:53 am

    Excellent, excellent point.
    Repubs are blithering idiots on this issue. I understand that Dems are evil, but why do Repubs hate the People so much?

    I see comments all over the blogosphere saying in effect;
    Dems will persist. They may lose a lot of elections but they won’t lose their leftard followers.
    Repubs on the other hand need to actually DO SOMETHING to end ObamaCare and growth of gov’t. Otherwise, the Repub Party will go out of business. If Repubs won’t fight for America we’ll just have to find a party that will.

I am OK with civil unions but disagree with gay marriage [to me, marriage IMPLIES man and woman].

But it’s time to settle this once and for all. No more kicking the can down the road. SCOTUS – settle this now.

    Limited Government for me but not for thee?

    JimMtnViewCaUSA in reply to walls. | November 7, 2014 at 11:56 am

    I suspect that over time gay marriage will come into being, thought you never know.

    But I do know this: I want the people to decide on it, not some gay judge.

      What is the problem with a gay judge deciding the issue? There is no difference between a gay judge and a straight judge (or a Christian judge, for that matter) deciding this, since the law would apply to them all…

    n.n in reply to walls. | November 7, 2014 at 6:04 pm

    To be fair, the progress of womb banks and sperm depositors have devalued the “male” and “female” commodity, and contributed to the popularity of progressive morality and selective fitness. Just do what feels good, I guess.

Humphrey's Executor | November 7, 2014 at 11:09 am

Looking at all the decisions upholding gay marriage, one thing remains perfectly unclear — what is the constitutional basis for upholding them? The decisions are all over the place: one says it doesn’t pass the rational basis test; another says it fails the strict scrutiny test because marriage is a fundamental right; and another creates a new “suspect class” — sexual orientation — and applies the intermediate scrutiny test. I think the rationale under all these theories is either week, dangerous or both. Hard cases make bad law. I guess we’ll now we’ll get a final call on this.

    Your comment makes no sense, legally speaking. We don’t need to show a “constitutional basis” for “upholding” gay marriage. Rather, the supporters of gay marriage bans are the ones who have to comply with the Constitution, since they are the ones enacting the laws (the bans in this case).

I feel my personal opinions on gay marriage are irrelevant. The issue is not gay marriage – it’s states’ rights.

Equal protection, Justices. And if humans are not exempt from implicit consent (e.g. Obamacare), then the argument for animal rights is equally devoid of merit. You can’t stop with homosexual marriage, and defer reconciliation to posterity. Progressive moralists are from the Triassic period.

I’ve said it before and I’ll say it again. Gay marriage is going to win, in the long run.

While I agree with this site’s authors on many issues, I continue to be astonished that they don’t just recognize the simple fact above and reconcile themselves to it…