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Appeals court upholds gay marriage bans, Supreme Court showdown looms

The Sixth Circuit became the first federal appeals court to uphold a ban on gay marriage, greatly increasing the likelihood that the Supreme Court will step in.

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A protester from Ohio carries a flag outside of the US Supreme Court in Washington in 2013. A decision Thursday by a federal appeals court in Ohio to uphold gay marriage bans could send the issue back before the Supreme Court.

Jonathan Ernst/Reuters/File

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In a much-awaited decision, a federal appeals court panel in Cincinnati on Thursday upheld same-sex marriage bans in four states, setting the stage for what could become an ultimate constitutional showdown at the US Supreme Court over gay marriage.

The panel voted 2 to 1 to uphold statutes and constitutional amendments in Michigan, Ohio, Kentucky, and Tennessee that bar same-sex marriages and the recognition of such marriages performed in other states.

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The holding is in sharp contrast to recent decisions handed down by four other appeals courts – in San Francisco; Richmond, Va.; Chicago; and Denver – that gay men and lesbians have a right protected by the US Constitution to marry the person of their choice without regard to sexual orientation.

The Cincinnati-based Sixth US Circuit Court of Appeals' decision is significant because, in creating a 4-to-1 split among the federal appeals courts, it has greatly increased the prospect that the US Supreme Court will agree to take up a same-sex marriage case.

Instead of joining the sister circuits, the Sixth Circuit ruled that each state has its own authority to define marriage and that the four states had acted within that authority in seeking to preserve the traditional definition of marriage as a union of one man and one woman.

In a 42-page opinion, Judge Jeffrey Sutton said there were two ways to resolve the national debate over same-sex marriage: through judicial decisions or through the democratic process on a state-by-state basis.

He said resolving the debate through continued litigation may not be the best way to change heads and hearts of those opposed to same-sex marriage.

“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,” Judge Sutton wrote in an opinion joined by Judge Deborah Cook.

“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.”

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Gay-rights advocates deserve better, the judge said, by achieving “earned victories through initiatives and legislation and the greater acceptance that comes with them.”

Judge Sutton said that maybe the American people deserve better, too, not just by having a say through elected representatives and through the courts, but by “having to come face to face with the issue.” 

“Isn’t the goal to create a culture in which a majority of citizens dignify and respect the rights of minority groups through majoritarian laws rather than through decisions issued by a majority of Supreme Court justices,” the judge wrote.

“It is dangerous and demeaning to the citizenry to assume that we [judges], and only we, can fairly understand the arguments for and against gay marriage,” he said.

In a dissent, Judge Martha Craig Daughtrey dismissed the majority opinion as a “largely irrelevant discourse on democracy and federalism.”

“The real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it,” Judge Daughtrey said.

“Because I reject the majority’s resolution of these questions based on its invocation of vox populi and its reverence for ‘proceed with caution’ (otherwise known as the ‘wait and see’ approach), I dissent,” she said.

A month ago on Oct. 6, the Supreme Court surprised most analysts when it declined to hear any of the appeals filed by five states seeking to defend statutes and constitutional amendments restricting marriage to heterosexual couples.

The Supreme Court action let stand the appeals court rulings and established legal precedents that require the striking down of same-sex marriage bans in every state in those circuits.

It instantly transformed the geography of the national debate over same-sex marriage. Prior to Oct. 6, 19 states and the District of Columbia recognized same-sex marriage. After the high court’s action, legal precedents were in place to require same-sex marriage recognition in 35 states.

Now, with the Sixth Circuit’s decision, all four states in that appeals court’s jurisdiction are operating under a sharply different legal precedent, one that allows the states to continue to define marriage in a way that excludes gay men and lesbians.

In his decision, Sutton rejected virtually all of the legal findings and conclusions of the four other appeals courts rulings. 

First, he said the US Supreme Court had never formally overruled a 1973 legal precedent upholding a Minnesota ban on same-sex marriages. He rejected the view that the high court’s decision last year in US v. Windsor laid the legal groundwork to require invalidation of all state bans on same-sex marriage.

He also brushed aside speculation that the recent refusal by the Supreme Court to take up a same-sex marriage case is a signal from the court that the right to same-sex marriage is inevitable.

“Maybe; maybe not,” Sutton said.

He said there were sound reasons for the high court to weigh in on the issue. “Four courts of appeals thus far have recognized a constitutional right to same-sex marriage. They agree on one thing: the result,” he said. “But they reach that outcome in many ways, often more than one way in the same decision.”

Sutton added that the high court’s refusal to take up the October cases “tells us nothing about the democracy-versus-litigation path to same-sex marriage, and they tell us nothing about the validity of any of these theories.”

The judge added: “If a federal court denies the people suffrage over an issue long thought to be within their power, they deserve an explanation. We, for our part, cannot find one.”

The appeals court heard six different cases.

A case from Michigan challenged that state’s ban on same-sex marriage. Two Kentucky cases challenged the state’s refusal to recognize valid same-sex marriages performed in other states, and two Ohio cases tested the state’s refusal to recognize out-of-state marriages for purposes of listing both spouses on the birth certificate of an adopted child from Ohio, and the state’s refusal to honor a New York marriage for purposes of listing the surviving spouse on a death certificate.