The same-sex marriage movement lost its first major case in a federal appeals court Thursday after a lengthy string of victories, creating a split among the nation's circuit courts that virtually guarantees Supreme Court review.
The 2-1 ruling from the U.S. Court of Appeals for the 6th Circuit reversed district court rulings that had struck down gay marriage bans in Michigan, Ohio, Kentucky and Tennessee.
More important, it gives Supreme Court justices an appellate ruling that runs counter to four others from the 4th, 7th, 9th and 10th circuits. Those rulings struck down same-sex marriage bans in Virginia, Indiana, Wisconsin, Oklahoma, Utah, Idaho and Nevada, leading to similar action in neighboring states.
Circuit Judge Jeffrey Sutton, one of the Republican Party's most esteemed legal thinkers and writers, issued the 42-page decision precisely three months after hearing oral arguments in the cases, with fellow GOP nominee Deborah Cook concurring. He delivered a rare defeat for proponents of same-sex marriage, who had won nearly all the cases decided from Florida to Alaska since the Supreme Court ruled against the federal Defense of Marriage Act in June 2013.
Sutton argued that appellate judges' hands are tied by a one-sentence Supreme Court ruling from 1972, which "upheld the right of the people of a state to define marriage as they see it." Last year's high court decision requiring the federal government to recognize legal same-sex marriages does not negate the earlier ruling as it applies to states where gay marriage is not legal, he said. The same reasoning was used by a federal district court judge in Puerto Rico last month.
"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," Sutton said. "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."
He also maintained that states "got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse."
The six cases before the three-judge panel involved not only whether gays and lesbians should be able to marry, but whether marriages performed elsewhere should be recognized, whether same-sex couples should be able to adopt children, and whether their names should be placed on partners' death certificates.
Judge Martha Craig Daughtrey, a Democratic appointee, delivered a blistering 22-page dissent. She disputed Sutton's reasoning that judges should not decide the issue.
"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 said.