The 2-1 ruling by the 6th Circuit Court of Appeals creates a circuit split in the lower courts and means the Supreme Court is much more likely to take up the issue.
Today’s ruling concerned marriage recognition bans in Kentucky, Michigan, Ohio and Tennessee. Judge Jeffrey S. Sutton of the 6th Circuit wrote the decision. Sutton, an appointee of President George W. Bush, was joined by Judge Debra L. Cook, also a George W. Bush appointee. Judge Martha Craig Daughtrey, a Clinton appointee, dissented.
“In just eleven years, nineteen States and a conspicuous District, accounting for nearly forty-five percent of the population, have exercised their sovereign powers to expand a definition of marriage that until recently was universally followed going back to the earliest days of human history,” Sutton wrote. He said such a decision should be made by the people, not the Courts.
But Judge Daughtrey slammed the majority opinion, which she said would make an “engrossing TED talk” but that “wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment.”
Now there is such a split, and it’s likely the Supreme Court will step in.