Yesterday in a 2-1 decision the 6th U.S. Circuit Court of Appeals in Ohio became the first federal appeals court to uphold a state ban on same-sex marriage. In doing so, it created the split among federal circuits needed to get a marriage equality case before the U.S. Supreme Court.
The justices already considered a flurry of cases early in the term — including one from the Fourth Circuit — but declined to take any up for review. Although they gave no reason, many experts suspected that the lack of any circuit split at that time was at least one reason for their refusal. Justice Ruth Bader Ginsburg said as much in public comments.
But the Sixth Circuit decision now directly conflicts with federal appeals courts in the Fourth, Seventh, Ninth, and Tenth Circuits.
“Now there is a split, and it is a stark one,” SCOTUSblog’s Lyle Denniston wrote :
In one sweeping decision, the Sixth Circuit has given all of the states in its geographic region a victory for their bans on both initial marriages of same-sex couples and official recognition of such marriages performed outside of the couples’ home states. By contrast, other federal courts have nullified identical bans in thirteen states just over the past few months, with the prospect that the number would soon rise to sixteen — for a total of thirty-five states, plus Washington, D.C., allowing such marriages.
A number of options now exist for parties to get a marriage case before the high court, Denniston explained later — including asking for a direct review of the Sixth Circuit case, a review of an appeals court decision that has not yet gone to the Supreme Court (the Ninth Circuit, for example), or a review of a case pending in an appeals court.
The first option — review of the Sixth Circuit case — is the best and most likely, Denniston said, for these reasons:
Among those three options, Option 1 might have the most promise of gaining Supreme Court review because the Sixth Circuit’s decision is the one that broke the pattern, because it involves an array of cases from four states, raising the constitutionality of bans on both new same-sex marriages and the official state recognition of out-of-state same-sex marriages, because it was written by a highly respected court of appeals judge (Jeffrey S. Sutton), because it brought a stirring dissent by another well-regarded jurist (Senior Circuit Judge Martha Craig Daughtrey), and because the opinions swept across all of the issues that have been raised in case after case — even the rather obscure question whether a refusal to recognize an out-of-state same-sex marriage violates the constitutional right to travel, and the emotional question of whether a death certificate for a same-sex spouse who has now died should show that there was a surviving spouse.
And indeed lawyers in that case have already indicated that they will move quickly, with the hope they’ll get the nod on review and then get the case on the calendar in time for argument and an opinion before the term ends in June.