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.
CLICK HERE FOR FULL VERSION OF THIS STORY