Legal / News & Politics

Same-Sex Marriage Update: 6th Circuit Upholds Marriage Bans

The inevitable has happened. In a 2-1 decision late last week penned by Bush-appointee Judge Jeffrey Sutton, the United States Court of Appeals for Sixth Circuit became the first federal appellate court to rule that refusing same-sex couples the freedom to marry is not unconstitutional, reversing the judgments of four District Court judges in Michigan, Kentucky, Ohio, and Tennessee.

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Sixth Circuit Judge Jeffrey Sutton

In the ongoing chess-match to secure same-sex marriage rights nationwide, the Sixth Circuit’s ruling is significant because it is in direct conflict with decisions from the Fourth, Seventh Ninth and Tenth Circuits, all of which struck down marriage laws and constitutional amendments restricting marriage to opposite-sex couples. The split authority among the federal appellate courts makes it significantly more likely, if not also inevitable, that the United States Supreme Court will finally address the issue head-on.

However, there is another potential step before heading to the Supreme Court of the United States (SCOTUS). The plaintiffs could ask all 23 of the Sixth Circuit’s judges to rehear the case instead of allowing a decision by a panel of only three of its members to stand. If the entire Sixth Circuit were to fall in line with its sister circuits, it would eliminate the need to go to SCOTUS, unless and until circuits that have not weighed in yet—the First, Fifth, Eighth and Eleventh—were to rule against same-sex marriage. We are likely to hear from the Fifth Circuit next, where oral arguments on two cases on appeal from Texas and Louisiana are tentatively scheduled for the week of January 5, 2015.

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United States Court of Appeals for the Sixth Circuit

With four cases affected by last week’s Sixth Circuit’s ruling, some unanswered questions include: will all of the plaintiffs adopt a single strategy to either seek en banc review by the entire Sixth Circuit or appeal directly to SCOTUS? If they opt for the former, will the Sixth Circuit agree to hear the case? If the latter, will SCOTUS wait to see how the Fifth Circuit rules before taking any action? If a combination of the two, what effect will a dual-track approach have on the overall strategy nationwide?

Stay tuned.

Do you have questions about an LGBT-related legal issue that you want me to address in future posts? Feel free to email me.

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