On Thursday, the 6th Circuit upheld gay marriage bans in Michigan, Ohio, Tennessee, and Kentucky, holding that these laws do not violate the U.S. Constitution. As predicted, Judge Jeffrey Sutton cast the deciding vote in the 2-1 case, insisting that the democratic process, not the judiciary, was the proper forum through which gay people should obtain civil rights:
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.
Sutton, a George W. Bush appointee, had described these concerns during oral argument last August, and they clearly guided his vote here. Predictably, Sutton also harps upon the brief portion of United States v. Windsor that dealt with states’ rights—while largely overlooking its concern with the dignity of gay people. In Windsor, the court held that a federal gay marriage ban “degrade[s],” “demean[s],” and “disparage[s]” gay people. Yet Sutton is unconcerned that gay marriage bans might “demean” gay people; rather, he frets that overturning such a ban would be “demeaning to the democratic process.”
With this decision, the 6th Circuit becomes the first federal appeals court to rule against gay marriage. Its ruling is at odds with those of four other appeals courts. Given this decisive circuit split, the Supreme Court will now almost certainly feel compelled to stop punting and decide the marriage equality question once and for all. That ruling could come as early as the end of this term, in late June.