Appeals Court Reinstates Gay Marriage Bans For The First Time

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The 6th Circuit Court of Appeals upheld gay marriage bans in four states on Thursday, a pivotal point in the legal battle for marriage equality that makes the Supreme Court likelier to step in and settle the issue.

It is the first appeals court to rule that same-sex marriage bans are constitutional since the 2013 Supreme Court decision in US v. Windsor. Four other federal appeals courts ruled that the Constitution protects the right of gay couples to marry, paving the way for same-sex marriage in more than 30 states.

The panel featured two Republican-appointed judges who overturned lower court decisions and upheld bans in Michigan, Ohio, Kentucky and Tennessee. One Democratic-appointed judge dissented.

“[T]he right to marry in general, and the right to gay marriage in particular, nowhere appear in the Constitution. That route for recognizing a fundamental right to same-sex marriage does not exist,” Circuit Judge Jeffrey Sutton wrote for the court.

The Supreme Court surprised many legal observers by refusing to hear the issue in early October, instead letting the uniform appeals court decisions stand. As long as the full 6th Circuit court doesn’t review and reverse the decision, it leaves a split in the appellate courts which creates a strong impetus for the justices to step in.

Justice Ruth Bader Ginsburg hinted as much in September, when she told a Minnesota audience that “there will be some urgency” for the Supreme Court to consider the issue if the 6th Circuit allows same-sex marriage bans to stand. Otherwise, she said, there’s “no need for us to rush.”

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ABOUT THE AUTHOR

Sahil Kapur is TPM's senior congressional reporter and Supreme Court correspondent. His articles have been published in the Huffington Post, The Guardian and The New Republic. Email him at sahil@talkingpointsmemo.com and follow him on Twitter at @sahilkapur.