Why the Supreme Court May Have to Rule on Gay Marriage

With a decision to uphold same-sex-marriage bans, the Sixth Circuit creates a division that only the justices can resolve.

Chief Justice John Roberts and Justice Samuel Alito stand outside the Supreme Court in 2006. (Jason Reed/Reuters)

The Sixth Circuit Court of Appeals upheld same-sex marriage bans in four states on Thursday. By creating a "circuit split," where different federal appeals courts have ruled in opposite directions on marriage equality, the ruling virtually guarantees Supreme Court's intervention to resolve it.

The 2-1 decision is the first by a federal appellate court to uphold same-sex marriage bans since the Supreme Court's rulings in summer 2013 in United States v. Windsor, which overturned the federal Defense of Marriage Act, and Hollingsworth v. Perry, which left standing a lower-court ruling that overturned California's same-sex-marriage ban. Since then, judges in the Fourth, Seventh, Ninth, and 10th Circuits have overturned similar bans in their jurisdictions. The Supreme Court justices refused to hear appeals on seven same-sex marriage cases in October.

In his majority opinion upholding bans in Kentucky, Michigan, Tennessee, and Ohio, Judge Jeffrey Sutton cast the debate as one between unelected judges and the will of the people. "Who decides?" the judge asked. "Is this a matter that the National Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?" To Sutton, judicial deference to the whims of voters is preferable here.

Sutton, a George W. Bush appointee, also attempts to challenge the constitutional underpinnings of other circuit courts. The Supreme Court itself has yet to rule on the constitutionality of same-sex-marriage bans—a historical fact he cites to his advantage. The closest the justices have come is in the 1971 case Baker v. Nelson, which they refused to hear upon appeal. "Windsor invalidated a federal law that refused to respect state laws permitting gay marriage, while Baker upheld the right of the people of a state to define marriage as they see it," Sutton wrote. "To respect one decision does not slight the other."

Similar bans on same-sex marriage had been ruled unconstitutional across the country for violating the Equal Protection Clause of the 14th Amendment. Sutton directly challenged this interpretation, noting that the Supreme Court has "never held that legislative classifications based on sexual orientation" qualify for heightened judicial scrutiny. (He omits that the Supreme Court has never held ruled to the contrary, either.)

Sutton's arguments did not go unanswered. The lone dissent, authored by judge Martha Craig Daughtrey, is blistering. "The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy," she writes, arguing that the court "treats both the issues and the litigants here as mere abstractions."

But Daughtrey's strongest rebuke is saved for the majority's judicial deference to the popular will. This, she argues, runs contrary to the purpose of the judiciary itself: To restrain "the pull of popular opinion" and to "ensure that rights, liberties, and duties need not be held hostage by popular whims."

More than 20 years ago, when I took my oath of office to serve as a judge on the United States Court of Appeals for the Sixth Circuit, I solemnly swore to "administer justice without respect to persons," to "do equal right to the poor and to the rich," and to "faithfully and impartially discharge and perform all the duties incumbent upon me…under the Constitution and laws of the United States." If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.

Will the Supreme Court take up Daughtrey's call? There is no way to force the high court to hear a case on appeal. Of the thousands of petitions submitted each term, the justices usually only hear less than 100 of them. But the high court's rules list a division between the federal circuit courts of appeal as one of the most compelling reasons for the justices to accept a case. A central purpose of the Supreme Court is to ensure that the law of the land is uniformly interpreted throughout that land. Now is the justices' chance.