Marriage equality may be heading for the Supreme Court after all.
The 6th Circuit Court of Appeals upheld same-sex marriage bans Thursday in Michigan, Ohio, Kentucky, and Tennessee, becoming the first federal appeals court in the nation to rule against marriage equality since the Defense of Marriage Act (DOMA) was struck down last year.
The break with tradition is important because it provides a “circuit split” that the Supreme Court will probably have to resolve. Last month, the justices declined to hear marriage equality cases out of five states – Indiana, Oklahoma, Utah, Virginia, and Wisconsin – most likely because every federal appeals court at the time had found same-sex marriage bans unconstitutional.
Legal experts had anticipated a loss for marriage equality at the 6th Circuit, which appeared skeptical of arguments in favor of same-sex marriage earlier this year. By a 2-1 vote, a panel of three judges determined that marriage laws were best left to the voters, not the courts.
“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,” wrote Judge Jeffrey Sutton, who was appointed by former president George W. Bush, in Thursday’s opinion. “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.”
To date, 32 states plus the District of Columbia have legalized marriage equality. On Wednesday, a state judge found Missouri’s ban unconstitutional, but analysts believe his ruling applies only to St. Louis.
Despite the rocky hearing last August, and the well-circulated predictions that the 6th Circuit would rule against marriage equality, attorneys for the plaintiffs were nonetheless disappointed with the outcome.
“While a tidal wave of courts around the nation have struck down marriage bans, this decision leaves 6th Circuit states in a backwater and, worst of all, injures same-sex couples and their children,” said Susan Sommer, director of constitutional litigation for Lambda Legal, in a statement. “Depriving same-sex couples and their families of the protections and dignity that come with marriage is flat out unconstitutional, and Lambda Legal vows to continue working until justice is won.”