Major news coming out of the Sixth Circuit today.  In a landmark (but divided) ruling, the Sixth Circuit has upheld same-sex marriage bans in Ohio, Michigan, Kentucky, and Tennessee.  See Opinion (6th Cir. Case Nos. 14-1341; 3057; 3464; 5291; 5297; 5818).  As we previously have covered, district courts in each of these four states had ruled that same-sex marriage bans were unconstitutional, but in a 2-1 opinion written by Judge Sutton and joined by Judge Cook, the Sixth Circuit today reversed.  In doing so, the Sixth Circuit has broken rank with the overwhelming majority of federal courts that have struck down same-sex marriage bans as unconstitutional. 

Judge Sutton’s majority opinion is a very philosophical one that explores the role of the judiciary in a democracy.  Much of it reflects Judge Sutton’s reasoning that bans on same-sex marriage pass muster under rational basis review and that the battle over gay marriage—one of the most highly contentious cultural issues of our time—should be decided by the people, not by a judiciary acting as some sort of superlegislature.  As Judge Sutton wrote:

“A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States.  Hesitant, yes; but still a rational basis, some rational basis, must exist for the definition.”

Judge Sutton also invoked notions of federalism to support the Court’s ruling: 

“There are many ways, as [the] lower court decisions confirm, to look at this question: originalism; rational basis review; animus; fundamental rights; suspect classifications; evolving meaning.  The parties in one way or another have invoked them all.  Not one of the plaintiffs’ theories, however, 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.”

Judge Sutton further observed:  

“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.”

Judge Daughtrey dissented, characterizing Judge Sutton’s majority opinion as “an introductory lecture in Political Philosophy” that “as an appellate court decision . . . wholly fails to grapple with the relevant constitutional question . . . .”  Judge Daughtrey criticized the majority for not following the lead of the sister Circuits which all have struck down same-sex marriage bans.

A couple of observations:  First, it was exactly three months ago today (August 6) that the Sixth Circuit heard oral arguments in these appeals.  And it was exactly one month ago today (October 6) that the U.S. Supreme Court denied seven cert petitions from five states, including Utah, Oklahoma, Virginia, Wisconsin, and Indiana, seeking review of rulings from the Fourth, Seventh, and Tenth Circuits striking down bans on same-sex marriage.  Last month’s cert denials by the Supreme Court paved the way for gay marriage to go forward in a number of states. 

In his opinion today, Judge Sutton commented on the Supreme Court’s October 6 cert denials, correctly noting that they did not end the debate over the constitutionality of same-sex marriage.   Citing the Supreme Court’s opinion in United States v. Carver, 260 U.S. 482, 490 (1923), Judge Sutton noted that “[t]his type of action (or inaction) ‘imports no expression of opinion upon the merits of the case, as the bar has been told many times.”  In a Scalia-esque one-liner, Judge Sutton added:  “A decision not to decide is a decision not to decide.”

Clearly, as Judge Sutton’s opinion makes clear, the debate over the constitutionality of same-sex marriage bans is not over.  If anything, the Supreme Court may have been waiting for a Circuit split to emerge before entering the fray on the issue.  That split has arrived.  It is very likely that today’s ruling by the Sixth Circuit will be reviewed by the Supreme Court, at least absent en banc review in the Sixth Circuit.  (And query whether the challengers should forego en banc review altogether and simply urge the High Court to take their case?) 

You can bet that today’s Sixth Circuit ruling will be hotly debated in the national media and on social media over the next few days.  Let us know your thoughts in the comments.