Federal appeals court overturns gay marriage ruling, setting up showdown in U.S. Supreme Court

11/06/2014 05:55 PM

UPDATED WITH GOV. STEVE BESHEAR REACTION: Kentucky’s ban on gay marriage appears to be heading to the U.S. Supreme Court after a federal appeals court reversed a lower court opinion overturning the state’s constitutional amendment on the issue Thursday.

In a 2-1 opinion, the 6th Circuit U.S. Court of Appeals determined bans in Kentucky and three other states – Michigan, Ohio and Tennessee – do not violate state constitutions. The Cincinnati-based panel’s decision is an outlier among federal courts after the U.S. Supreme Court struck down parts of the Defense of Marriage Act.

In the 64-page opinion, U.S. Circuit Judge Jeffrey Sutton wrote for the majority and said the issue should be decided by states rather than the courts, although Sutton alluded to the possible resolution in the higher court.

From the majority opinion:

If the Court takes the first approach, it may resolve the issue for good and give the plaintiffs and many others relief. But we will never know what might have been. If the Court takes the second approach, is it not possible that the traditional arbiters of change—the people— will meet today’s challenge admirably and settle the issue in a productive way?

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. That is a difficult timeline to criticize as unworthy of further debate and voting.

When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers.

Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.

In her minority opinion, U.S. Circuit Judge Martha Daughtrey chastised her colleagues for falling “prey to the misguided notion that the intent of the framers of the United States Constitution can be effectuated only by cleaving to the legislative will and ignoring and demonizing an independent judiciary.”

“If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams,” Daughtrey wrote in her opinion.

Kentucky’s role in the appeal involves two cases on same-sex marriage, challenging the state’s ability to not recognize same-sex couples wed in other states and deny marriage licenses to gay couples. U.S. District Judge John Heyburn ruled the state’s ban unconstitutional, although his decision was stayed as the case moved through the appeals process.

A number of politicians and interest groups weighed in on the ruling, and the the decision to appeal Attorney General Jack Conway, who said his office would not seek an appeal, and Gov. Steve Beshear, who hired an outside firm to appeal the ruling.

Conway, a Democratic gubernatorial candidate in 2015, said he didn’t anticipate Heyburn’s decision to withstand an appeal and Beshear said he expected the U.S. Supreme Court to ultimately decide the issue.

“Today we took another step toward what Kentucky and this nation need: A United States Supreme Court ruling that establishes clear direction for states across the country on this divisive issue,” Beshear said in a statement Thursday.

“I said all along that we needed clarity and certainty in Kentucky, and a lower court’s ruling was not sufficient. I expect the plaintiffs to appeal this ruling quickly, and I urge the Supreme Court to take up this issue.”


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