The Sixth Circuit Just Made Nationwide Same-Sex Marriage Even More Likely, And Closer To Reality

An unsurprising ruling from the Sixth Circuit Court of Appeals that only seems to bring closer the day when same-sex marriage will be legal nationwide.

Same Sex Marriage Supreme Court

Just over a month ago and to the surprise of many, the Supreme Court declined to hearsi the appeals that had been filed to appeals of rulings by the Fourth, Seventh, and Tenth Circuit Courts of Appeal which had struck down laws banning same-sex marriage in Virginia, Indiana, Wisconsin, Oklahoma, and Utah. The ruling was considered surprising by many at the time because the assumption had been that the Court would accept at least one of these case to rule upon the issue of state law bans on same-sex marriage once and for all, an issue it had avoided via a procedure ruling in the case it had heard involving California’s Proposition 8 two years ago. At the same time, though, ruling was consistent with known Supreme Court practice, and comments by Associate Justice Ruth Bader Ginsburg, in that the Court has generally not accepted appeals in state law cases when there is not a split among the twelve Circuit Courts of Appeal on the ultimate issue., Since all three Circuits had ruled identically for the most part, there was no need for the Court to step into the matter prematurely. The immediate impact of the Court’s action through inaction was to legalize same-sex marriage in the four states impacted by the ruling and, by implication to all of the states covered by the three Circuits, which consist of an additional six states. Several days later, the Ninth Circuit Court of Appeals chimed in with its own ruling striking down bans in Idaho and Utah, and effectively the bans in the three other states that are part of the Ninth Circuit that had not banned same-sex marriage. Within a week, then, the number of states where same-sex marriage was legal had gone from nineteen to twenty-nine and today only three states covered by these four Circuits — Montana, Kansas, and South Carolina — have bans that are still technically in effect because a Court has not yet acted on the lawsuits pending in those states. As of today, then there are thirty-two states where same-sex marriage is legal, a number that will eventually increase to thirty-five.

Hanging over the issue of same-sex marriage since that first week in October, though, has been the fate of the remaining areas of the country not impacted by the four Circuit Court of Appeals rulings. has been the issue of the fifteen states where same-sex marriage is still illegal. There is at least one lawsuit pending in each state, but they have been in various stages of litigation. In the states covered by the Eighth and Eleventh Circuits, for example, none of the cases has made it to the respective Court of Appeals just yet. The Fifth Circuit Court of Appeals is scheduled to hear oral argument in cases involving the laws in Texas and Louisiana later this month. The one decision everyone has been waiting for has been the one from the Sixth Circuit Court of Appeals. That Court heard a consolidated appeal involving all of the states under its jurisdiction — Michigan, Ohio, Kentucky, and Tennessee — in early August, and the anticipation at the time was that the panel that heard the appeal would be inclined to uphold the bans, but nobody could be sure and, more importantly, nobody could be sure how the panel might react to what the Supreme Court and the Ninth Circuit did at the beginning of October. Today, exactly three months since the hearing in Cincinnati in those cases, that panel issues a 2-1 ruling upholding the ban against same-sex marriage in each of the four states involved, thus virtually guaranteeing that the Supreme Court would be ruling on this issue by the end of its current term in June 2015:

By a 2-to-1 vote, a federal appeals court in Cincinnati upheld the right of states to ban same-sex marriage, overturning lower-court decisions in Kentucky, Michigan, Ohio and Tennessee that had found such restrictions to be unconstitutional.

The long-awaited decision, written by Judge Jeffrey S. Sutton, an appointee of President George W. Bush, ​was the first by an appeals court to uphold a ban on same-sex marriage, contradicting rulings by four other federal circuit courts. The ruling appeared almost certain to force the Supreme Court to decide the same-sex marriage issue for the nation.

“This is the circuit split that will almost surely produce a decision from the Supreme Court, and sooner rather than later,” said Dale Carpenter, a professor of constitutional law at the University of Minnesota. “It’s entirely possible that we could have oral arguments in coming months and a Supreme Court decision by next summer.”

In the decision, by a panel of the United States Court of Appeals for the Sixth Circuit, Judge Sutton said that it appears almost inevitable that American law will allow gay couples to marry, but the more fundamental question, he wrote, is “Who decides?”

Judge Sutton said that such a profound change in the institution of marriage should be decided not by “an intermediate court” like his, but by “the less expedient, but usually reliable, work of the state democratic processes.” He dismissed the reasoning issued in the last year by several other federal courts, which have ruled that barring same-sex marriage violated equal protection or due process clauses of the Constitution and have no rational basis.

Michael C. Dorf, a constitutional expert at Cornell Law School, said that “the essence of this opinion is that the issue should be left to the democratic process or to the Supreme Court, but I’m not going to do this as an appeals court judge.”

In a stinging dissent, Judge Martha Craig Daughtrey, an appointee of President Bill Clinton, called the majority opinion “a largely irrelevant discourse on democracy and federalism” that treated the couples involved as “mere abstractions” rather than real people suffering harm because they were denied equal status.

Gay rights groups and lawyers for the plaintiffs in the four affected states criticized the ruling.

“We’re extremely disappointed for the families in these four states, but this decision highlights the need for the U.S. Supreme Court to right this injustice,” said Susan Sommer, the director of constitutional litigation for Lambda Legal, which helped argue one of the six cases involved in Thursday’s decision.

In declining to hear the appeals in October, justices did not rule on the merits of the cases. But by acquiescing in the court-mandated spread of same-sex marriage to many states, justices effectively created a new social reality, making it extremely unlikely, many legal experts say, that the court would find such bans constitutional.

“If the court reversed those decisions, it would create chaos,” Mr. Dorf said. “It would seem highly unlikely, but technically they can do it.”

Lyle Denniston summarizes the Court’s opinion, which was written by Judge Jeffrey Sutton, a George W. Bush appointee previously best known for being one of the first Circuit Court of Appeals Judges to issue a ruling upholding the individual mandate in the Affordable Care Act when that case was winding its way through the Federal Court system:

Circuit Judge Jeffrey S. Sutton, the author of the main opinion, wrote:  “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.”

The opinion was joined by Circuit Judge Deborah L. Cook.  Senior Circuit Judge Martha Craig Daughtry dissented, calling the Sutton opinion “an introductory lecture in political philosophy,” but one that failed, as an appellate court decision, “to grapple with the relevant constitutional issue in this appeal.”


The Circuit Court’s majority opinion reached its result through these specific steps:

* It ruled that the Supreme Court’s one-line decision in the 1972 case of Baker v. Nelson, saying that a challenge to a state ban on same-sex marriage did not raise “a substantial federal question,” is a still-intact precedent, and it binds the lower courts.

* It found that the Supreme Court’s 2013 decision in United States v. Windsor, striking down a part of the federal Defense of Marriage Act, did not disturb that 1972 precedent.

* It relied upon the Supreme Court’s comment in the Windsor decision that the Court was not providing an answer to the basic question of state authority to impose bans on same-sex marriages.

* It commented that the Justices’ October 6 refusal to grant review of any of the same-sex marriage appeals before it then does not end the debate over state authority in this field.

* It rejected the reasoning of all of the other federal court rulings striking down state bans, and said that they involve a wide array of reasoning.  And it rejected the theories of the challengers in bringing those cases, saying that “not one” of those “makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.”

Leaving aside the legal arguments in the majority and dissenting opinions, though, the most important thing about the decisions in these cases is the fact that it creates the split among the Circuit Courts of Appeals that the Justices apparently felt was lacking when they considered the appeals it acted on in early October. As I’ve noted before, there technically was already a split on the issue of state law bans on same-sex marriage by virtue of an opinion from the Eighth Circuit Court of Appeals issued in 2008. However, that decision was handed down four years before the Supreme Court’s decision in United States v. Windsor which struck down Section Three of the Defense of Marriage Act, a decision that has served as the basis for pretty much all of the opinions handed down by Federal Courts since it had been issued. Additionally, the Eighth Circuit has not had an opportunity to reconsider its ruling in light of Windsor since no case has reached it yet, so the Justices may have felt that the decision in that case was not a sufficiently clear ruling to create a Circuit split on the issue. Had they felt differently, the presumably would have granted one or more of the appeals. With this decision, though it can no longer be said that there is not a Circuit split since the differences between Judge Sutton’s opinion and those from the other four Circuits could not be more apparent. Thus, the one thing that didn’t exist on this issue in early October regarding this issue can now be said to clearly exist, and the likelihood that the Supreme Court will accept an appeal to this decision would seem to be quite high.

As Denniston notes in his write-up, the Plaintiffs in these cases have several options going forward. Doing nothing is always an option of course, but is one that can be rejected out of hand given the nature of the cases and the reasons why they were filed. Second, the parties could ask the Sixth Circuit to review the case en banc in the hope that the full Circuit Court of Appeals would look at the case in the light of the developments arising out of the Supreme Court’s action and the implicit message that it seems to be sending to lower Courts, as well as the Ninth Circuit’s ruling, and overturn the panel decision. If this course of action were taken then the case would likely not make it to the Supreme Court in time to be considered during the current term, however. The second obvious option, of course, would be to file an Petition for a Writ of Certiorari with the Supreme Court as soon as possible asking the Justices to accept the appeal, primarily in light of the split among the five Circuit Courts of Appeal that have now ruled on the issue of state law bans on same-sex marriage. Given timing and deadline issues, it would be somewhere around the end of this year or early next year when the Court would likely decide to accept the case or not. If the cases were accepted, then there would likely be a hearing on the cases scheduled for either late March or early April 2015, with a ruling likely being among the last handed down during the final week of the Court’s current term at the end of June. There is also a possibility, albeit remote, that a Judge on the Sixth Circuit could move to get the cases considered for en banc review, but that is not a common course of action and seems to be unlikely here. Indeed, both the majority opinion and the dissent in this case read as though the authors are well aware that this decision is likely to be the one the Justices will base their ruling on this issue, a ruling that could potentially resolve the Constitutional validity of state law bans on same-sex marriage nationwide. Of all the possible courses of action, then, an appeal to the Supreme Court, sooner rather than later, seems to be the most likely. Indeed, I would imagine that the lawyers on both sides of this issue have been considering what they would argue in their respective petitions to the Justices for the past month in anticipation of precisely this outcome.

There is always the possibility, of course, that the Supreme Court will decline to accept these cases for appeal, but that seems as unlikely as the idea that the Plaintiffs would decline to take any action after today’s rulings. Given the fact that there is now a Circuit split, the direct conflict between the 6th Circuit and the 4th, 7th, 9th, and 10th Circuits creates real dilemmas not only for the parties impacted by those decisions, but also similarly situation parties across the country and the courts responsible for ruling on the lawsuits they have filed on this issue. This is precisely the kind of conflict that the Supreme Court exists to resolve, and I expect that is exactly what they will do. The question everyone wants an answer to, of course, is what the Supreme Court will do with the case, and that is the kind of $64,000 question that nobody can be certain of the answer to until that day when the decision is handed down.

That being said, as I said in the wake of the Court’s decision at the beginning of October not to hear the appeals impacting in the end more than half the states in the country, I believe we can have at least some indication of where the court is headed on this issue when it finally is called upon the rule on the merits:

The Justices, after all, are not unaware of the world around them and they have seen the impact of their ruling in United States v. Windsor over the past sixteen months in a string of nearly unbroken, and in any case overwhelming Federal and State court decisions striking down bans against same-sex marriage. They are also well aware that the immediate impact of their decision to deny the appeals here would be the legalization in same-sex marriage in the four states that were parties to the lawsuits and, eventually, to the remaining states in the 4th, 7th, and 10th Circuits. That means that tens of thousands of same-sex couples are going to be getting married, establishing families, and planning their lives in reliance on those decisions. Even assuming that there is a same-sex marriage case that makes its way back to the the Supreme Court that it is inclined to accept for appeal, the impact of this decision will be felt far and wide and a subsequent decision later this year that essentially reverses what the Court did yesterday would throw all of those people into legal and political limbo that would be, as Deniston describes it, legal chaos of a very personal nature.

Like Epps, it is inconceivable to me that the Justices would allow all of this to happen only to pull the rug out from under Americans at some point down the road.

The Epps I mention here is Garrett Epps, who teaches Constitutional Law at the University of Baltimore, and wrote a post on this issue at The Atlantic in early October.

Additionally, when looking at how the Court might decide a case like this, it would be a mistake not to look at the individual Justices and what they are likely to do. It’s fairly obvious that Justices Ginsburg, Breyer, Sotomayor, and Kagan would be in the group of Justices that would vote to strike down the state bans on same-sex marriage, and that Justices Scalia, Thomas and Alito would be in the group that would uphold them. Chief Justice Roberts was also one of the four Justices that voted to uphold the Defense of Marriage Act along with those three, but I’ll have a word about him in a moment. That leaves Justice Anthony Kennedy, who has become the Court’s swing Justices on more than one occasion since the departure of Justice Sandra Day O’Connor and who has had a very interesting, very libertarian if you will, history in dealing with the gay rights issues that the Court has ruled on over the past twenty years. Consider these cases, for example:

  • Kennedy wrote the majority opinion in  Roemer v. Evans, a 1996 opinion which struck down a Colorado law that attempted to prevent localities from banning discrimination based on sexual orientation in municipal employment;
  • He also wrote the majority opinion in Lawrence v. Texas, a 2003 opinion which struck down laws criminalizing sodomy, a case which overruled the Court’s earlier ruling in Bowers v. Hardwick which had been handed down two years prior to Kennedy joining the Court; and finally,
  • He wrote the majority opinion in U.S. v, Windsor, which struck down DOMA and has been the legal basis for every Federal and State court decision since it was issued on the issue of state law marriage bans

There are never guarantees in these cases, of course, but Justices Kennedy’s personal and ideological evolution on the issue of what the Constitution has to say about protection of people based on sexual orientation has been clearly laid out in each of these opinions, and it would be a radical deviation from that course of thought for him to rule that the state law bans that are effectively identical to the ban he ruled on in Windsor, and have at their heart the same animus against gays and lesbians as the Colorado law in Roemer and the laws criminalizing sodomy in Lawrence, are valid. Is it possible that this could happen? Yes, anything is possible when dealing with a case of first impression like this. However, given everything we know about what Kennedy and the Court has done on issues related to those central to the issues in these cases, a ruling upholding the bans would seem to be highly unlikely. In any case, we should have the answer to that question in just over seven months if this case moves at the pace most people expect it to. Finally, getting back to Roberts, while I don’t see him being a fifth vote in favor of striking down state law bans, I could see him being a sixth vote, especially if he wanted to have some say about just how sweeping the Court’s opinion would be in such a situation. At the very least, though, it seems clear that we probably do have the five votes necessary to strike the bans down

For  those who support marriage equality who are disappointed by this decision, such as myself, let me say this. Without this case, it would likely be at least another year if not longer before we would get a final resolution of this matter in the United States. Given where the Court has been moving in this area, I would submit that there is good reason for optimism in the ultimate outcome. So, don’t let this one get you down too much because it likely means that the final legal victory in a fight that has gone exceedingly well in a very short period of time is much, much closer.

Here is the Court’s opinion, and the dissent

Sixth Circuit Same-Sex Marriage Opinion by Doug Mataconis

FILED UNDER: Law and the Courts, US Politics, , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook


  1. Hal_10000 says:

    Doug, if they do try to go directly to the Supreme Court, can the higher Court turn it down in favor of an en banc consideration by the full Sixth Circuit? That would seem to be a way for the Court to dodge the issue for another year.

  2. @Hal_10000:

    Not really, because if SCOTUS rejects an appeal that pretty much would obviate any opportunity under the applicable rules for the Sixth Circuit to hear the case en banc.

    They could remand the case to the Sixth Circuit for some reason or technicality I suppose, but that too seems unlikely.

  3. HarvardLaw92 says:

    @Doug Mataconis:

    I’m somewhat blown away at the mental gymnastics necessary to reach all the back to Baker v. Nelson while completely ignoring Windsor. I’m not entirely convinced that Sutton didn’t do this precisely to set the issue up for appeal. It’s just too much off in outer space for a judge as intelligent as he is to have constructed it as a legitimate position.

    More to the point, there is no way that SCOTUS will dodge cert on this one. Ginsberg as much as stated that they have been waiting for a circuit to deliver a negative ruling, and at least 4 votes exist in favor of granting. Probably 5.

  4. HarvardLaw92 says:


    Seeking an en banc appeal is the option of the appellant. It is not a mandated step prior to seeking relief from SCOTUS, and speaking honestly, they gain nothing but delay in seeking it. Beyond that, it’s bad strategy. When faced with the choice between an en banc ruling that would (if delivered in the affirmative) result in 4 states being forced to implement SSM, or a ruling from SCOTUS (which IMO has as much as signaled that the votes exist for an affirmative ruling) which implements SSM across the entire country, it isn’t much of a choice.

  5. @HarvardLaw92:

    Relying on Baker while ignoring not just Windsor, but also the denials of cert in October (which at least seem to imply that the Justices themselves don’t consider Baker to be good law anymore) is quite something, isn’t it?

  6. HarvardLaw92 says:

    As expected, attorneys for the plaintiffs in these cases have indicated that they will not be seeking an en banc appeal at the 6th Circuit, and expect to have their appeal to SCOTUS fully briefed & submitted shortly. Certiorari is a virtual certainty, so one way or the other, we should have a definitive answer (i expect one in the affirmative) on this issue by next summer.

  7. Maxi says:


    When faced with the choice between an en banc ruling . . .

    By seeking an en banc ruling, does the appellant give up the right to later seek cert from the Supreme Court? If not, it seems the wiser choice would be to first pursue an en banc ruling and if that fails, then seek cert from SCOTUS. Basically, you’d get two bites at the apple.

  8. HarvardLaw92 says:

    @Maxi: No, seeking an en banc ruling does not negate subsequent relief from SCOTUS. That having been said, en banc review is not guaranteed, and as I indicated earlier, if granted, it can create strategic problems for appellants who are seeking a ruling which will implement a policy shift nationwide (as these marriage cases are mostly seeking to do).

    It works like this. Appellant loses at the panel level (each case / joined set of cases heard by circuit courts are heard by a panel of three judges which are more or less assigned randomly to the case[s].) The appellant then has the option to seek an en banc review of the panel’s ruling. Much like certiorari at SCOTUS, the court as a whole (active judges) votes on whether or not to grant the application for en banc review.

    If granted, then the entire active judge court reviews the case, and can set aside or affirm the panel’s holding. If denied, the appellant(s) retains the right to petition SCOTUS for certiorari.

    Now, if the appellants seek and obtain a en banc review, and prevail, it stops there unless the losing party seeks certiorari. This is the danger from a strategic perspective.

    For example, if the SSM proponents in this case sought en banc review from the 6th Circuit, it was granted, and they prevailed, SSM would then become the law in 4 states (Kentucky, Michigan, Ohio and Tennessee). Having prevailed, though, they have ceded the right to further appeal to SCOTUS, and the potential for a nationwide policy shift would die there unless one of the AG’s in the affected states appealed to SCOTUS.

    Given the makeup of the 6th Circuit’s active judge pool (3 Clinton, 1 Reagan, 2 Obama and 8 Bush II), it is not to their advantage to seek an en banc ruling – 1) because it is exceedingly unlikely to be granted and 2) in the unlikely event that it is granted, they are highly likely to lose again, so they accomplish nothing but delay. The sole exception to that disadvantage assertion is instances where the appellant expects en banc to be denied and wishes to toll the clock with respect to certiorari at SCOTUS (in order to gain more time to perfect their brief to SCOTUS). A timely filed petition for en banc review stops the clock with respect to the SCOTUS certiorari deadline until the petition is denied. So, if you expect to be denied and want to gain extra time to perfect your SCOTUS argument, you petition for en banc, expecting to be denied, and use the interregnum to work on the brief that you will be filing with SCOTUS.

    Given what these cases are seeking to accomplish (a nationwide policy shift), the glaring weaknesses of the panel ruling, and the more amenable environment at SCOTUS vs the 6th Circuit, their best path from a strategic standpoint is by far to forgo any petition for en banc and go directly to their certiorari petition. Give the makeup of this panel, I wouldn’t be remotely surprised if the appellant lawyers didn’t expect to lose from the outset and have their SCOTUS briefs already well on their way to being perfected already. Any smart SSM proponent lawyer would have been planning for and preparing for that next step the second that they learned the names of the judges on this panel.

    Speaking frankly, heading directly to SCOTUS is more likely to give them what they are after, it accomplishes that goal much more quickly, and Sutton’s ruling only adds to the likelihood that they will prevail there. It’s honestly just THAT badly constructed …