About a month ago, the U.S. Supreme Court surprised many with an unexpected announcement: the justices would not hear any of the marriage-equality cases pending in the courts. Three appellate courts — the 4th, 7th, and 10th Circuits — had already cleared the way for same-sex marriages in much of the country, and the high court decided not to intervene. Soon after, the 9th Circuit reached the same conclusion.
As we discussed at the time, there was growing talk that unanimity among the lower courts would mean the Supreme Court might never weigh in at all — it’d be a moot point if every state were covered, through the will of voters, elected policymakers, appellate court rulings, or some combination therein.
Late yesterday, however, the landscape changed.
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.
The entirety of the 2-1 ruling is available online here (pfd). Judge Jeffrey Sutton, a George W. Bush appointee, wrote for the majority, arguing that if same-sex couples wish to legally marry, they should avoid justice through the courts and simply persuade their opponents to expand civil rights.
Judge Martha Craig Daughtrey, a Clinton appointee, wrote a rather scathing dissent.
In the short term, this is obviously a setback for proponents of civil rights in the states within the 6th Circuit, but it’s important to emphasize that this isn’t the end of the road.
On the contrary, as Rachel noted on the show last night, the U.S. Supreme Court may have taken a pass at this issue last month, but with appellate courts now disagreeing on the matter, the high court justices probably won’t have any choice but to tackle the issue.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."