Gay Marriage Recognition Bans Upheld in Four States. Are We SCOTUS-Bound Now?

As some court watchers
(including
our own Damon Root) predicted, the U.S. Court of Appeals for
the 6th Circuit has put the brakes on the mass march of same-sex
couples to their local city clerk’s office to pick up marriage
licenses. By a ruling of 2-1, the court has reversed lower court
rulings and
upheld gay marriage recognition bans in Michigan, Ohio,
Kentucky, and Tennessee.

The majority conclusion isn’t so much about the validity of bans
of gay marriage as about who controls the process by which they are
or are not recognized. As Root previously suggested, it is a
deferential decision. From the ruling
(pdf):

This case ultimately presents two ways to think about change.
One is whether the Supreme Court will constitutionalize a new
definition of marriage to meet new policy views about the issue.
The other is whether the Court will begin to undertake a different
form of change—change in the way we as a country optimize the
handling of efforts to address requests for new civil
liberties.

If the Court takes the first approach, it may resolve the issue
for good and give the plaintiffs and many others relief. But we
will never know what might have been. If the Court takes the second
approach, is it not possible that the traditional arbiters of
change—the people— will meet today’s challenge admirably and settle
the issue in a productive way? In just eleven years, nineteen
States and a conspicuous District, accounting for nearly forty-five
percent of the population, have exercised their sovereign powers to
expand a definition of marriage that until recently was universally
followed going back to the earliest days of human history. That is
a difficult timeline to criticize as unworthy of further debate and
voting. 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.

That reference to the “heroes being judges and lawyers” sounds
like a not-so-subtle shot at guys like Ted Olson and David
Boies, who have certainly pursued lots of
positive press for their role in fighting Proposition 8 in
California, as well as judges who have made sure to have some nice
quotable lines in their rulings striking down marriage recognition
bans.

We now have split decisions, with the 6th Circuit decision
running counter to several other circuit decisions. This will
increase the likelihood that the Supreme Court will take up the
issue. They had previously declined, but previously all the appeals
courts were in agreement.