The likelihood that the U.S. Supreme Court will decide the issue of same-sex marriage grew stronger Thursday, when a federal appeals court upheld bans on marriage for gay couples in four states.
By a 2-1 vote, a panel of the 6th U.S. Circuit Court of Appeals, based in Cincinnati, rejected challenges to the bans in Ohio, Kentucky, Michigan, and Tennessee. The ruling reversed lower court decisions, currently on hold, that declared the state bans unconstitutional.
Writing for the majority, Judge Jeffrey Sutton said momentous decisions about marriage are best left to the political process.
"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.
"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," Sutton said.
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The ruling was at odds with decisions from four other federal appeals courts — the 9th Circuit in the far West, the 10th Circuit in the West, the 4th Circuit in the Mid-Atlantic and the 7th Circuit in the Midwest.
The U.S. Supreme Court declined last month to hear appeals to those decisions, which led to further court rulings — striking down more state bans and bringing the number of states permitting marriage for gay couples to 32.
Same-sex couples who challenged the laws in the four states subject to Thursday's ruling can ask the full 6th U.S. Circuit Court of Appeals to re-hear their cases, or they can skip that step and go directly to the U.S. Supreme Court.
"Same-sex marriage advocates will feel a strong a pull to skip re-hearing. They are eager to get final word from the Supreme Court where they feel confident they will prevail," said Tom Goldstein, a Washington, DC lawyer who argues before the Supreme Court.
Thursday's ruling said the couples challenging state bans failed to make a case "for constitutionalizing the definition of marriage" and taking it out of the hands of voters.
The court found a rational basis for the state bans — establishing ground rules "to create and maintain stable relationships within which children may flourish."
It's true, the court said, that marriage has also come to be viewed as a way to solemnize relationships characterized by love and commitment. "Gay couples, no less than straight couples, are capable of such relationships."
But the court said that does not mean that the states must look at the marriage issue in the more modern way "on pain of violating the Constitution."
What's more, the court said, if it would be unconstitutional to restrict marriage to the man-woman definition, "it must be constitutionally irrational to stand by the monogamous definition of marriage."
Writing for the majority, Sutton added, "Our task under the Supreme Court's precedents is to decide whether the law has some conceivable basis, not to gauge how that rationale stacks up against the arguments on the other side."
Gay rights groups strongly criticized Thursday's ruling. Shannon Minter of the National Center for Lesbian rights, which represented gay couples in Tennessee, said it was out of step with federal courts "that have ruled over the past year that same-sex couples and their children are entitled to the same dignity and legal protection as other families."
But the Alliance Defending Freedom, an Arizona-based group that has defended state marriage bans, praised the ruling.
"The Constitution does not demand that one irreversible view of marriage be judicially imposed on everyone," said Byron Babione, a lawyer for the group.
The U.S. Supreme Court gave no reason for declining to take up the marriage issue in October. But the court does not normally hear appeals when the lower courts are in agreement. Now, a split exists within the circuit courts, making it far more likely the justices will agree to hear the issue.
If an appeal is filed quickly, the issue could be heard during the court's current term, if the justices decide to grant it.
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