Opinion: A ‘circuit split’ will force a ruling on gay marriage

Supreme Court wonks, gay rights groups and the public were bemused last month when the Supreme Court declined to review federal appeals court decisions striking down state bans on same-sex marriage.

More perplexing than the decision not to hear the appeals was the fact that the court allowed the decisions to go into effect, creating “facts on the ground” as more gays and lesbians tied the knot. Even some admirers of judicial restraint thought the court was ducking the issue.

It won’t be able to do so much longer. On Thursday the Cincinnati-based U.S. 6^th Circuit Court of Appeals by a 2-1 vote upheld bans on gay marriage in Michigan, Ohio, Kentucky and Tennessee. This decision creates the “circuit split” that was lacking when the court passed on appeals from pro-gay-marriage rulings by the 4^th, 7^th and 10^th Circuit Courts of Appeal. (The 9^th Circuit later struck down bans on same-sex marriage.)

Some had thought that the 6^th Circuit panel might fall into line with the other circuits based on a perception that the Supreme Court had signaled that it would be happy if same-sex marriage were legalized nationwide without the justices’ involvement. But the majority of the three-judge panel wasn’t willing to cooperate.

In an opinion for the panel, Judge Jeffrey Sutton concluded that Supreme Court precedent didn’t authorize a decision to strike down bans on same-sex marriage in Kentucky, Michigan, Ohio and Tennessee. (Sutton did acknowledge that “gay couples, no less than straight couples, are capable of raising children and providing stable families for them. The quality of such relationships, and the capacity to raise children within them, turns not on sexual orientation but on individual choices and individual commitment.”)

The conventional wisdom is that, when squarely faced with the issue, at least five members of the Supreme Court will conclude that bans on same-sex marriage violate either or both the Due Process Clause and the Equal Protection Clause of the 14^th Amendment. But we can’t be sure until the court actually rules.

As The Times said in an editorial Oct. 7: “The court’s approach looks less like ‘deliberate speed’ than dithering. The sooner it ends, the better -- for long-suffering gay couples, for the legal system and for the country as a whole.”

Even those who disagree with Sutton’s opinion should thank him and his colleagues for forcing the issue.

Follow Michael McGough on Twitter @MichaelMcGough3