The latest ruling on same-sex marriage from a federal appeals court was a bitter disappointment to the 16 gay and lesbian couples who challenged bans in four states. But the response from lawyers on their side was decidedly mixed.
That's because the legal defeat brings them closer to their ultimate goal — a decision from the Supreme Court, perhaps as soon as June. It's the one aspect of Thursday's decision from the 6th U.S. Circuit Court of Appeals in Cincinnati that both sides agree on.
"The U.S. Supreme Court will have the final word on this issue. The sooner they rule, the better, for Michigan and the country," said Bill Schuette, Michigan's attorney general.
Steve Shapiro, legal director of the ACLU, said the decision "highlights the need for the Supreme Court to step in and rule on the people's right to marry, regardless of the state they live in."
By a 2-1 vote, a panel of the appeals court upheld bans on same-sex marriage in Michigan, Ohio, Kentucky and Tennessee. Four other federal appeals courts have reached the opposite conclusion.
Under federal rules, lawyers for the gay couples could ask the full 6th Circuit appeals court to re-hear the case, or they could skip that step and go directly to the Supreme Court.
Though a decision on the next step will involve a long list of lawyers involved in the case, there's little doubt where the issue is headed.
"We're going straight to the Supreme Court," said Dana Nessel, a lawyer for a lesbian couple challenging the Michigan ban.
Said Chase Strangio of the ACLU, "We'll be filing for Supreme Court review right away."
If the necessary briefs are filed quickly, the case could come before the court in time for the justices to consider it in January. If they choose to grant review, the issue would most likely be argued in late April, with a decision by late June.
Just a month ago, the Supreme Court took a pass on the marriage issue, declining to hear appeals from five states — Oklahoma, Indiana, Wisconsin, Utah, and Virginia — whose bans on same-sex marriage were declared unconstitutional by the lower courts.
While the court never explains why it declines to take up a case, a big factor was undoubtedly the fact that the lower courts were in agreement.
Now that there's a split among the circuits, it's much more likely the justices will finally step in.