Supreme Court to take up Sixth Circuit appeal

by Anthony Glassman

Washington, D.C.--Four days after denying another appeal, the Supreme Court on January 16 agreed to hear appeals from the Sixth Circuit Court of Appeals ruling upholding bans in Ohio, Michigan, Kentucky and Tennessee.

The Sixth Circuit Court of Appeals, based in Cincinnati, upheld state marriage bans in a November 6, 2014 ruling of a 2-1 split panel. It was the first appellate ruling against same-sex marriage since the Supreme Court struck down the third clause of the federal Defense of Marriage Act in 2013.

On October 6, the Supreme Court denied writs of certiorari in seven same-sex marriage cases from five states, all of which had been appealed to the high court. Those appeals were from the Fourth, Seventh and Tenth Circuits, meaning that marriage immediately became law in Indiana, Wisconsin, Virginia, Oklahoma and Utah, and would make efforts to fight against same-sex marriage in other states in those three circuits infinitely more difficult.

It was not until the November 6 ruling by the Sixth Circuit, however, that there was any dissent among the circuits, what is termed a �circuit split.� Because such splits create differences in law between states, the Supreme Court often will not weigh in on an issue until there is such a split regarding a matter under the United States Constitution.

On September 16, speaking at the University of Minnesota Law School, Justice Ruth Bader Ginsburg said that it was unlikely the high court would take up a marriage case until there was a circuit split. With that split now in existence, the court set April for arguments, and is allotting two and a half hours for oral arguments instead of the usual one hour. A ruling is expected in June.

Groups are also petitioning the court to allow broadcast of the proceedings, which the Supreme Court does not allow. At least two organization are asking the court to allow either television cameras or internet streaming of the audio of the oral arguments.

As of now, 36 states and the District of Columbia allow full same-sex marriage, while judges in five other states have struck down marriage bans, although those rulings have been stayed pending appeals.

Op-eds in newspapers around the country have called for the high court to put an end to marriage inequality once and for all since the justices agreed to take up the cases. The New York Times pointed to Justice Anthony Kennedy, the likely swing vote on the court, who also wrote the decisions in the last three pro-LGBT Supreme Court decision.

�In each case, Mr. Kennedy wrote eloquently of the dignity and equality of gay people. It is hard to see how, given the combined reasoning in those cases, he could now turn back at the threshold of one of the most important civil-rights decisions in a generation,� the newspaper�s editorial board wrote.

It also pointed out that, along the course of 40 lower court rulings against marriage bans, �The arguments against same-sex marriage have been thoroughly dismantled, so the bans� supporters have grown increasingly desperate to generate new arguments. The latest to take hold is the idea of �responsible procreation� - that is, because heterosexual couples can conceive a baby by accident, they need an incentive to get married and raise the child together.�

�Of course, that has nothing to do with the right of same-sex couples to get married,� the New York Times board concludes. �In striking down bans in Indiana and Wisconsin, the federal appellate judge Richard Posner called the argument �so full of holes that it cannot be taken seriously.� �

The Washington Post�s Paul Waldman noted in a January 19 story that the Supreme Court decision could throw a monkey wrench into the nomination of the next Republican presidential candidate. While some candidates are taking a wait-and-see approach, and would likely not criticize the court�s decision too severely, far-right candidates like Mike Huckabee and Sen. Ted Cruz do not seem to care what decade it is or what any court says.

�Cruz in particular has attacked the Supreme Court in ways that signal he may keep up the crusade even if SCOTUS does declare a Constitutional right to gay marriage,� Waldman wrote. �But if you were a Republican candidate with a little more concern for the general election, how would you go about convincing evangelical primary voters that you�ll be there for them? You can talk about abortion, but all the contenders have the same position on that. Same-sex marriage is the only other hot button issue around.�

Of course, even if the evangelical vote is locked down, it might move a candidate too far to the right, politically speaking, making him or her an unsavory choice for voters in the general election.