Same-sex marriage will now likely become a Supreme Court case

REUTERS/Larry Downing

The idea that the Constitution protects the equal right of same-sex couples to marry has made astonishingly fast progress in courts around the country. Between states that legalized same-sex marriage by statute, (as Minnesota did) or by referendum, and states covered by the string of federal court decisions, same-sex marriage is now legal in 32 states.

But the U.S. Supreme Court has so far not taken an appeal in any of those cases that could have allowed them to rule on the question that would be binding on all 50 states. In September, when she spoke at the University of Minnesota Law School, Supreme Court Justice Ruth Bader Ginsburg suggested that since all of the federal appellate courts that had decided cases on the question had ruled on the same side (in favor of the legality of same-sex marriage), the Supreme Court would probably not accept a case until they got some disagreement from the lower courts.

This morning that happened. The Sixth District Court of Appeals, which covers Michigan, Ohio, Kentucky and Tennessee, ruled by a 2-1 margin that states do have the authority to ban same-sex marriage. That creates the conflict among appellate courts that Ginsburg referenced and will likely lead to a U.S. Supreme Court ruling on the question.

(Just to clarify, states like Minnesota that legalized same-sex marriage by law or by state constitutional amendment, would not be in play in such a case. But if the high court comes down the same way as the Sixth Districts court did, the country could continue to be a checkerboard of states that allow same-sex marriage and states that ban it. If the Supremes rule the way the other appellate courts have, it could have the effect of legalizing same-sex marriage in all 50 states.)

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Comments (29)

  1. Submitted by Thomas Swift on 11/07/2014 - 01:18 pm.


    • Submitted by jason myron on 11/07/2014 - 04:34 pm.

      Why do you care?

      Seriously? How does who another person marries affect you in any way?

    • Submitted by Dan Hintz on 11/10/2014 - 11:37 am.


      You are going to be very disappointed in what the Supreme Court does if they get this. Probably the same feeling you got this week after earlier predicting Stewart Mills’s sure victory.

  2. Submitted by Peder DeFor on 11/07/2014 - 04:17 pm.

    Simple Prediction

    By the time a ruling happens, SSM will have been legalized by many, if not all of the states where it’s not still legal. If 40+ states have it legalized, the SCOTUS is not going to invalidate. This is all over but the shouting. And soon enough, not even that.

    • Submitted by Thomas Swift on 11/10/2014 - 11:01 am.

      Only a few states legalized it. Most were forced into accepting it by leftist federal judges. Those states will have the option to re-visit the issue if the SCOTUS upholds state amendments.

      • Submitted by Dan Hintz on 11/10/2014 - 12:31 pm.


        Leftists like Richard Posner? Are you saying that Ronald Reagan appointed leftists?

        • Submitted by Kurt Anderson on 11/11/2014 - 11:18 am.

          Good point, Mr, Hintz

          I would not blame “leftists.” Republican appointees have provided the majorities in famous (and arguably [?!] undemocratic) decisions from Roe v Wade to Bush v Gore and several more decisions that do not appear on most radar screens. They are not shy about trumping the will of the voters in favor of what appear to me to be untethered spacewalks through constitutional law.

  3. Submitted by Greg Kapphahn on 11/07/2014 - 05:02 pm.

    I Strongly Suspect

    That the Supremes are quietly putting pressure on the Sixth District Court of Appeals to take this to the entire Court so that they can reverse the three-judge panel.

    I don’t believe the Supremes want to be caught in the middle of this particular culture war.

    I think it has become clear to some of the most conservative justices that their big business friends believe same-gender marriage is “good for business.”

    They don’t want to vote against what their wealthy friends desire, but even moreso, they don’t want to poke at and break open the hornet’s nest of opposition they’d face if they were to rule same gender marriage to be a constitutionally-protected right.

    They’ll hope for and try to arrange never to have to make that ruling.

    • Submitted by Peder DeFor on 11/07/2014 - 09:37 pm.

      Good for Business?

      I’m not sure what the personal feelings of the various Supremes are on SSM, but I’m baffled by the idea that big business is going to lean on them to rule for it. Can you walk me through the thinking on that?

    • Submitted by Paul Brandon on 11/07/2014 - 09:56 pm.


      If they start invalidating mixed marriages, Clarence Thomas’s marriage might have to be revoked 😉

    • Submitted by Peder DeFor on 11/10/2014 - 07:02 am.


      I’m still hoping for a reply as this is my new favorite conspiracy theory. I love the idea that Big Bakery and Big Wedding Planning are going to sit some Justices down and explain to them that they need to let SSM through, see? I could fully understand this as applied to the upcoming suit on the ACA. The insurance lobby (maybe as big as Big Wedding DJ!) is very invested in making sure that their portion of Obamacare gets them the benefits they’ve been promised. I don’t know that they have a pipeline to the Notorious RBG or others, but they have a pretty clear interest here.
      Anyway, still hoping for that point by point walk-through.

  4. Submitted by Robert Langford on 11/08/2014 - 06:53 am.

    There is a link between the SCOTUS taking up marriage

    and ACA. Should both cases be decided against the extant status, it will go a long way in supporting yesterday’s Glean commentary. I fear this court will try to move culture back fifty years, when poor folks did not get care because they could not afford it, and relationship was only what a few men in political power said it could be. Rather than being the bulwark protecting the rights we should enjoy under our constitution, this court will likely return us to their outdated view of Nirvana.

  5. Submitted by Ray Schoch on 11/08/2014 - 09:02 am.

    My 2¢

    …lines up with Peder DeFors. The SCOTUS does have some reactionaries as members, and in the right circumstances, those people might happily move us back to the 19th century, but all the cultural momentum seems to be moving quickly in favor of same-sex marriage, and I don’t think the Court will want to try to fly in the face of where the culture and society are heading. The justices are somewhat removed from the everyday lives of most of us, but that removal isn’t total. Perhaps not as quickly as some would like, nor as slowly as others would prefer, the SCOTUS has provided plenty of evidence in the past 150 years that it can, and does, change to reflect the society of which it is a part.

    • Submitted by Pavel Yankovic on 11/09/2014 - 07:46 am.

      Is the role..

      of the US Supreme court to change with society or uphold the US Constitution?

      • Submitted by Thomas Eckhardt on 11/09/2014 - 03:07 pm.

        Both, actually

        There is absolutely nothing in the Constitution that deals with marriage, same sex or otherwise. There is something about equal protection under the law. Previous courts may not have felt society wanted this protection to cover same sex marriage. But there is nothing in the Constitution that prohibits same sex marriage. With the majority of states now allowing same sex marriage, is it the role of the Supreme Court to tell them they are wrong?

        • Submitted by Thomas Swift on 11/10/2014 - 11:05 am.

          The majority of states that allow SSM were forced into it through lefty federal courts. Reversing those decisions would validate the wisdom and will of the majority of Americans.

          • Submitted by Jonathan Ecklund on 11/14/2014 - 08:40 am.


            The majority of Americans support marriage equality, and have since 2010. The number only gets higher with each year.

    • Submitted by Peder DeFor on 11/10/2014 - 07:18 am.

      SCOTUS and Society

      It’s pretty clear that SCOTUS pays at least some attention to what’s going on in the broader society. Just imagine if they had ruled interracial marriage legal in the 1870’s instead of waiting until much later. There would have been widespread violence throughout the south (and probably great unhappiness in the north). But it wasn’t settled until much later, after most of the country had already legalized it. Not coincidentally, there ruling didn’t cause much trouble.
      Similarly, if SCOTUS had invalidated DOMA after Clinton signed it into law (without any Dem opposition), the entire history of SSM would be very different and probably not nearly so good for those in favor of it. But twenty years can be a big amount of time for a culture. Now it’s widely accepted.
      I hope I can write a similar comment on legalizing pot, some five to ten years into the future!

  6. Submitted by Kurt Anderson on 11/08/2014 - 03:37 pm.

    The courts should have left this one alone

    I dread to think of the long-term consequences for our democracy if the federal courts tell large majorities of voters, in a large majority of our states, that their democratic preferences do not matter. It would be so much better if the justices would vote, as Minnesota voters (including me) did, to keep the issue out of the constitution. The changing cultural climate on gay marriage is best expressed in elections and legislative enactments.

    • Submitted by Thomas Swift on 11/10/2014 - 11:06 am.

      I agree 100%

    • Submitted by Dan Hintz on 11/10/2014 - 11:26 am.

      They couldn’t leave it alone

      The constitution requires them to act. One of the roles of the courts is to protect the rights of the minority from being infringed by the majority. It would have been nice if people could get over their bigotry sooner, but when your rights are being denied, you shouldn’t have to wait. That’s what the courts are for. It would have been unconscionable for the courts not to get involved.

      • Submitted by Dennis Tester on 11/10/2014 - 12:43 pm.


        There’s no constitutional right to marry.

        • Submitted by Kurt Nelson on 11/10/2014 - 02:27 pm.

          Section 1

          of the Fourteenth says otherwise, what with the whole thing about those crazy “civil rights”, and no state infringing on the life, liberty, or property without due process…, or denying equal protection of the laws.

          The beauty of the Constitution is the lack of enumerated rights, seems like it would be sort of cumbersome to have an exhaustive list. Like marriage, privacy is not listed either, except we have a lot of laws surrounding privacy, a word absent from that document. Are against those laws too.

          Loving v. Virginia – you might want to check it out, especially the part where the Court says marriage is a right, even between the races.

          • Submitted by Kurt Anderson on 11/11/2014 - 10:49 am.

            Check it _all_ out

            If you are going to invoke Loving v Virginia as a reason to trump legislative preferences (and by the way, I probably agree with you on SSM as a matter of legislative policy) then you also need to:
            1) Explain why the Loving justices unanimously rejected the SSM case of Baker v Nelson just 3-4 years later; and
            2) Acknowledge that the Lovings were actually arrested for holding themselves out as married, whereas under existing constitutional law that would not be possible for gay couples today.

            • Submitted by RB Holbrook on 11/14/2014 - 01:33 pm.

              Checking it all out

              1. Baker v. Nelson was decided over 40 years ago. The jurisprudence of the 14th Amendment has gone through much evolution since then (Craig v. Boren and Romer v. Evans stand out in that regard)

              2. While (since Romer) it is not a crime for people of the same gender to cohabit, their unions are not legally recognized in many states. Put another way, just because it isn’t a crime doesn’t mean it’s legal.

        • Submitted by Dan Hintz on 11/10/2014 - 10:07 pm.

          Utterly and Completely Wrong

          Mr. Tester returns after a 4-month absence to demonstrate once again that he does not understand constitutional law. In the 1967 case Loving v. Virginia, the Supreme Court found that marriage was a constitutional right.

          If Mr. Tester had read ANY of the recent decisions on gay marriage he would be familiar with the Loving case and the court’s recognition of marriage as a constitutional right. Is it too much to ask that when you respond to a comment with “nonsense” that you first spend some time educating yourself about the basic facts involved?

      • Submitted by Kurt Anderson on 11/11/2014 - 01:14 pm.

        They couldn’t leave it alone (wry smile)

        Add a wry smile and a sigh to that headline, and I’d probably have to agree with it.

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