The momentum of success experienced by marriage equality advocates experienced its first set back on Tuesday, November 4th when the Sixth Circuit U.S. Court of Appeals (Ohio, Michigan, Kentucky, and Tennessee) ruled 2-1 that the states had the right to set their own rules for marriage and that any changes to the definition of “marriage” should come through the political process and not the courts.

The majority’s decision was interesting, insofar as it minimizes the Court’s role in interpreting the Constitutionality of Kentucky’s same-sex marriage ban. Judge Sutton, writing for the majority, cites concepts of Federalism to justify his position; the dissenting justice, Judge Daughtrey, takes exception to that argument and basically views the majority’s opinion as an abdication of the Court’s role to interpret the constitutionality of the law. Not surprisingly, each justice comes from a different ideological branch of the political tree with Judge Sutton having been appointed by President George W. Bush (as well as being a former law clerk to Supreme Court Justice Antonin Scalia); while Judge Daughtrey was an appointment from President Bill Clinton.

The Sixth Circuit’s break with the Fourth, Seventh, Ninth, and Tenth circuits decisions to strike down same-sex marriage bans may result in the Supreme Court taking up the case soon. The Supreme Court declined to take up a same-sex marriage case in its most recent session on the basis that there were no inconsistencies among the four circuits who have considered the issue. The success of same-sex marriage proponents was actually preventing what some might hope would be the coup de grace of same-sex marriage bans.

In September, Supreme Court Justice Ruth Bader Ginsburg told an audience at the University of Minnesota School of Law that the Fourth, Seventh and Tenth Circuits’ similar decisions on the issue did not create the “urgency” needed for the Supreme Court to consider the legal issue. If the Sixth Circuit’s decision doesn’t create “urgency” then it at least gets the issue on the Court’s radar. In the interim, it is possible that the Sixth Circuit case, Bourke, et al. v. Steve Beshear, et al., will be heard by the entire Sixth Circuit bench. The recent decision was made by the Circuit’s three justice panel; the appellant can ask for a vote from the Sixth Circuit en banc before seeking certiorari to the U.S. Supreme Court.

While viewed as a set-back for marriage equality proponents, it may prove to be the trigger for a Supreme Court review of same-sex marriage bans.


Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter@AaronWeemsAtty.