This maybe the one bright side to the recent Sixth Circuit ruling reinstating gay marriage bans in four states. If the supreme court actually does its job, it will effectively declare all state and federal laws banning gay marriage unconstitutional thus paving the way for marriage equality across the board in America. The celebrations the religious right homophobes are certainly having now, maybe premature. Than again there’s no guarantee the Supreme court will be on the right side of history. Ian Millhiser reports.
On Thursday afternoon, the United States Court of Appeals for the Sixth Circuit just became the first federal appeals court in the country to side with marriage discrimination. Although the immediate effect of this court’s 2-1 decision is that marriage equality will not quickly become the law in Michigan, Ohio, Kentucky and Tennessee, the most important consequence of the Sixth Circuit’s holding is that there is now a “circuit split” on the question of whether same-sex couples must be allowed to marry under the Constitution. A circuit split, which occurs when two or more federal appeals courts disagree on the same question of law, is one of the most common reasons that the Supreme Court agrees to hear a case. Thus, the Sixth Circuit’s decision on Thursday all but guarantees that the justices will decide whether the Constitution’s promise of equality extends to gay people in all 50 states.
To date, the Fourth, Seventh, Ninth and Tenth Circuits have all sided with equality, along with nearly every single federal trial judge to consider the question after the Supreme Court struck down the anti-gay Defense of Marriage Act in 2013. Moreover, the Supreme Court has stood aside and allowed the federal appeals court decisions supporting marriage equality to take effect. The momentum is clearly against discrimination, and Judge Jeffrey Sutton’s opinion for the Sixth Circuit shows a keen awareness of this fact. His decision reads like the Custer’s Last Stand of judicial opinions. In it, he tries to anticipate every single legal argument that can be raised in support of marriage equality, and then he attempts to bat it down.