Same-Sex Marriage Law Quagmire…What’s Next?

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The same-sex marriage movement has had a lengthy string of victories recently. In many states, same-sex marriage has been approved either through legislation, court rulings or voter referenda. Recently the 4th, 7th, 9th and the 10th U.S. Circuit Courts of Appeals ruled that ban of same-sex marriage violates the U.S. Constitution’s guarantee of equal protection under the law for everyone. However, on November 6th, the United States 6th Circuit Court of Appeals affirmed the right of four states to ban same-sex marriage. The ruling was on the appeal filed by Michigan, Kentucky, Tennessee, and Ohio states against lower courts’ rulings which had found the gay marriage bans in their states unconstitutional. The 2-1 vote reversed the lower courts’ rulings.

Opponents of same-sex marriage laws see this as a victory for them. Some argue that this decision is a blow to proponents of same-sex marriage. However, the reality is that with this decision upholding the bans, the Sixth Circuit has created a split among the circuit courts. It has created a division on the circuit courts decisions which now calls for resolution by the Supreme Court.

In the past the Supreme Court has refused to hear appeals on same-sex marriage. The court takes most of its cases on certiorari, and cannot be forced to hear a case on appeal. For example, when the bans on same-sex marriage were declared unconstitutional by the lower courts in Indiana, Wisconsin, Utah, and Virginia, it declined to hear appeals from these states. However, there’s little doubt that there’s now a compelling reason for the justices of the Supreme Court to intervene. Not doing so will be contrary to its main purpose of ensuring uniformly interpreted laws for this country.

Going by the trend of things, many experts believe that same-sex marriage movement stands a better chance to get a favorable ruling today in the Supreme Court than it did a few years ago. In recent years, there has been a wave of pro-gay marriage rulings in state and federal courts. In 2013, the Supreme Court handed same-sex marriage movement two major victories. The first is the striking down of parts of the Defense of Marriage Act, and the second is allowing same-sex marriages to resume in California. Furthermore, just a month ago, the court turned away appeals from five states with gay marriage bans that were appealing on lower court rulings overturning those bans.

So instead of looking at the decision as a loss for the same-sex movement, I see it as setting the stage for a momentous action by the Supreme Court. I still find it amazing how the tide of public opinion on same-sex marriage changed rapidly. Today, there are already 32 states with legal same-sex marriage. That is about 60% of the US population. The California Proposition 8 experience has also taught us that, once there’s a binding court decision on the issue, states cannot change that, even by way of ballots. Wherever you stand on the issue, it seems likely that same-sex marriage will end up being legal nationwide when the Supreme Court assumes its role as the final arbiter of the law.

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