A month ago, the Supreme Court ducked an opportunity to take on the issue of whether states could decide how to define marriage, apparently on the basis of a lack of a split in the appeals circuits. The Sixth Circuit stole that excuse from the high court yesterday, upholding traditional-marriage definitions in four states:
A federal appeals court panel upheld bans on same-sex marriage in four states Thursday, a break with other federal courts that makes it almost certain the Supreme Court must take up the issue of whether gay couples have a constitutional right to marry.
A panel of the U.S. Court of Appeals for the 6th Circuit in Cincinnati ruled 2 to 1 that although same-sex marriage across the nation is practically inevitable, in the words of U.S. Circuit Judge Jeffrey S. Sutton, it should be settled through the democratic process and not the judicial one.
The decision overturned lower-court rulings in Michigan, Ohio, Tennessee and Kentucky and makes the 6th Circuit the first appeals court to uphold state bans since the Supreme Court struck down part of the federal Defense of Marriage Act in 2013.
The Washington Post’s Robert Barnes notes a remark from Justice Ruth Bader Ginsburg after the demurral last month that the court didn’t see the need to take up cases that didn’t spark disagreement in lower circuits. Now Ginsburg and her colleagues have the disagreement, and will have to take up the case. The ruling itself challenges whether the judiciary itself should even be involved in the question, and the Supreme Court will have to be the final arbiter of that question as well.
The high court could hope that an en banc reversal of this ruling could get them off the hook, but it seems neither side in the case is interested in playing at the appellate level any longer:
[T]he next question is whether the process moves quickly enough that the court takes up the issue this term, which would mean a decision by early summer.
Both winners and losers in the cases said they were eager to expedite the process to let the high court have its say.
The decision to pass on the issue at the beginning of the court’s session in October wasn’t exactly a Profile in Courage moment. This question is significant enough in legal, cultural, and political weight to expect some kind of final judgment from the Supreme Court, and delay is not inconsequential. If the court reverses the lower courts, there will be a number of substantial problems with the status of those who got married during the interim period while the court dithered. In fact, that particular consequence of delay will almost certainly have to factor into considerations of equal-treatment arguments that will be made about the laws themselves, thanks to the reluctance of the Supreme Court to address the issue.
The Supreme Court can no longer avoid the issue. However, it may still be possible for them to punt it in some way. Given their track record thus far, that’s a likely outcome even if they immediately move to grant cert on DeBoer et al v Snyder et al.