Constitutional Law

6th Circuit upholds same-sex marriage bans in 4 states; will issue now go to US Supreme Court?

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For the first time, a federal appeals court has refused to recognize a constitution-based right of same-sex couples to marry, creating a circuit split and setting the issue up for likely U.S. Supreme Court review.

In a 2-1 decision (PDF) on Thursday, the Cincinnati-based 6th U.S. Circuit Court of Appeals reversed federal district court judges in Kentucky, Michigan, Ohio and Tennessee who had struck bans on same-sex marriage and said the issue is most appropriately decided in the political arena.

The Associated Press, the Detroit News, the Los Angeles Times (sub. req.) and USA Today have stories.

“Rational basis review does not permit courts to invalidate laws every time a new and allegedly better way of addressing a policy emerges, even a better way supported by evidence and, in the Michigan case, by judicial fact-finding,” Judge Jeffrey Sutton wrote in a 42-page opinion with which Judge Deborah Cook concurred. “It is hard to see the point of premising a ruling of unconstitutionality on factual findings made by one unelected federal judge that favor a different policy.”

In a 22-page dissent, Judge Martha Craig Daughtrey said the court had not only the authority but the obligation to recognize same-sex marriage.

“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,” she wrote.

Today’s ruling for the first time creates a circuit split on the issue; previously, the 4th, 7th, 9th and 10th circuits had all upheld a constitutional right to same-sex marriage.

Thus, although the U.S. Supreme Court last month refused to grant certiorari concerning earlier appellate court rulings, the issue is now likely headed to the nation’s top court.

“Probably the only way that this ruling would not predictably lead to Supreme Court review, it appears, is if there is a request for en banc review in the Sixth Circuit, and that request is granted,” writes Lyle Denniston in a SCOTUSblog post about the 6th Circuit decision.

Related coverage:

Volokh Conspiracy: “Sixth Circuit on the “rational basis” for opposite-sex-only marriage laws”

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