It was a good week for opponents of marriage equality, but next week could be an entirely different story.
Just two days after Republicans cleaned up in Tuesday’s midterm elections, same-sex marriage bans – thought to be a lost conservative cause – finally scored a victory at the federal appellate level. A three-judge panel of the 6th Circuit Court of Appeals upheld marriage laws Thursday that exclude gay and lesbian couples in Michigan, Ohio, Kentucky and Tennessee. It was 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 past week’s events served as a breath of fresh air for marriage equality opponents, whose 14-month string of losses had been interrupted only twice before – the first time by a state judge in Tennessee, and the second time by a federal judge in Louisiana. But while they may be riding high on the 6th Circuit’s ruling now, legal experts have a stark message for them moving ahead: don’t get too comfortable up there.
“I think this will turn out to be an outlier, and I think this will be reversed,” University of Richmond law professor Carl Tobias told msnbc. “I guess the ruling does give marriage equality opponents some encouragement in the short term, but I think it’s going to be short-lived.”
Thursday’s ruling revived the chances that the Supreme Court would review a marriage equality case this session, and possibly issue another landmark decision for gay rights. The justices declined to go down that road last month when they rejected cert petitions to hear cases out of Indiana, Oklahoma, Utah, Virginia and Wisconsin – a move that cleared the way for marriage equality to move forward immediately in those five states, as well as in six more bound to the same appellate rulings. At the time, every federal appeals court to weigh the issue since the DOMA ruling had found same-sex marriage bans unconstitutional, leaving no “circuit split” for the justices to resolve.
That all changed with the 6th Circuit’s ruling, however, as did the hopes of so-called “traditional” marriage supporters, who before Thursday had little reason to celebrate. Out of dozens of cases pending in state and federal courtrooms across the country, judges had overwhelmingly rejected arguments in defense of same-sex marriage bans, including at the 4th, 7th, 9th, and 10th Circuit Courts of Appeals. The 6th Circuit’s decision, therefore, came as a much-needed break for anti-marriage equality groups that were arguably teetering on the brink of obsolescence.
“We have been awaiting this decision for some time,” said National Organization for Marriage (NOM) President Brian Brown in a statement following the ruling. Like many traditional marriage advocates, who were seeing their messages fall flat in the U.S., NOM had begun taking its message to friendlier audiences overseas.
“[We] welcome it not only as a tremendous victory,” Brown continued, “but as a common sense recognition that it is not for the federal courts to substitute their judgment about whether same-sex ‘marriage’ is a good idea or not, but to leave it to the people to make the decision about this fundamental institution.”
Family Research Council President Tony Perkins struck a similarly triumphant note.
“[R]ecent polls and the election demonstrate that support for marriage redefinition is stalling as Americans begin to experience and consider the consequences for religious freedom, free speech, and parental rights,” Perkins said in a statement applauding the 6th Circuit’s decision. “And as more and more people lose their livelihoods because they refuse to not just tolerate but celebrate same-sex marriage, many Americans are beginning to see that this is about far more than the marriage altar, but is about fundamentally altering society.”
Thirty-two states currently allow gay and lesbian couples to marry. That number could go up to 35 with Kansas, Montana and South Carolina all bound to appeals court rulings in favor of same-sex nuptials. In those three holdouts, state officials have vowed to continue defending their bans. So, too, have officials in states where gay and lesbian couples are already getting hitched.
Many analysts view this effort as a waste of time. An appeal in Kansas, for example, would go to the 10th Circuit, which has twice determined same-sex marriage bans to be unconstitutional. (In fact, the 10th Circuit on Friday cleared the way for marriage equality to go forward in Kansas next week.)
But here again, marriage equality opponents look to the 6th Circuit for encouragement. Hours after Thursday’s ruling came down, attorneys for legislative leaders in North Carolina – where marriage equality began last month – filed notice that they would appeal decisions striking down the state’s same-sex marriage ban.
“I don’t think that they needed the 6th Circuit decision to justify enforcement of their laws, but I think that the 6th Circuit decision should encourage them to continue defending their laws,” said Jim Campbell, senior legal counsel at Alliance Defending Freedom. “It now looks like there’s a greater probability that the Supreme Court will take up this question in the not too distant future. And if you’re in one of those circuits that have already decided this question, there’s more of an immediate chance the Supreme Court will take this issue, and then whatever they say will trump the federal appeals decision.”
On that point, both sides of the debate can agree – the justices are far more likely to take up an appeal from a state within the 6th Circuit now that there’s a definitive circuit split. But legal experts predict marriage equality will win in the end.
“It’s not 100% certain, but if you read Windsor [the case that brought down DOMA] and Justice Scalia’s dissent in Windsor, I think that tells you where the court will likely go,” said Tobias. “The Oct. 6 cert denials reinforce that. If the justices are going to find bans constitutional, they would never have denied cert knowing that all those new marriages were going to happen … That would be crazy.”
Susan Sommer, director of constitutional litigation for Lambda Legal, one of the law firms representing the Ohio plaintiffs, agreed. She told msnbc that her team plans on filing an appeal of the 6th Circuit’s ruling to the nation’s highest court “very soon.”
“The court will make its own determine but the law’s on our side, justice is on our side, the vast majority of other courts to consider the question have been on our side,” Sommer said. “The writing’s on the wall.”