Big development: A three-judge panel of the 6th Circuit U.S. Court of Appeals today upheld bans on same-sex marriage, the first federal appeals court to do so in the era following groundbreaking rulings on couple’s rights in marriage. This could lead to the conflict among circuits that will force the U.S. Supreme Court to step in.

The panel ruled 2-1 to reverse district court rulings in Michigan, Kentucky, Tennessee and Ohio.


Republican-appointed Judge Jeffrey Sutton, one of his party’s leading judicial authorities, wrote the 42-page decision, with fellow GOP nominee Deborah Cook concurring….

“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 said. “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.”

Good thing Sutton wasn’t around in the days when it was socially acceptable and legal to prohibit interracial marriage. A court settled that issue in a Virginia case. There was dissent:

Judge Martha Craig Daughtrey, a Democratic appointee, delivered a blistering 22-page dissent in which she disputed Sutton’s reasoning that judges should not decide the issue.

“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,” Daughtrey said.

The plaintiffs could ask for the entire 6th Circuit bench to review the three-judge panel’s ruling. Or they could just appeal directly to the U.S. Supreme Court. Said Chad Griffin, president of the Human Rights Campaign:


“The legacies of Judges Deborah Cook and Jeffrey Sutton will forever be cemented on the wrong side of history. Today the Sixth Circuit stood in the way of a path constructed by two dozen federal court rulings over the last year – a path that inevitably leads to nationwide marriage equality. Gay and lesbian couples in Kentucky, Michigan, Ohio and Tennessee are just as deserving of marriage equality as the rest of America. Now, more than ever before, the Supreme Court of the United States must take up the issue and decide once and for all whether the Constitution allows for such blatant discrimination. We believe that justice and equality will prevail.”

Today’s ruling was an attempt by the two judges to appeal to Supreme Court Justice Anthony Kennedy’s prior opinions regarding the validity of state constitutional amendments, specifically his opinion in Schuette v. Coalition to Defend Affirmative Action.

The National Center for Lesbian Rights, which worked in bringing the cases, has lots of background here. 

It goes without saying that an adverse ruling, with its enhanced prospect of forcing a Supreme Court decision, will weigh on the minds of Arkansas Supreme Court justices and the federal judge set to hear separate marriage equality cases attacking Arkansas’s ban on Nov. 20.


scotusblog delves into the ins and outs of how the appeal might proceed.