The Sixth Circuit Speaks: Upholds Same-Sex Marriage Bans

Kirby Stephens, KLJ Staff Editor

Last week, the Sixth Circuit finally ruled on the same-sex marriage cases before it and upheld the bans from Kentucky, Michigan, Ohio and Tennessee by a two to one vote. Though it began its opinion by noting that the recognition of gay marriage seems almost inevitable, the two-judge majority expressed concern that the issue should be more properly addressed through the democratic process.[1]

The majority engaged in an analysis of history and tradition as part of its conclusion, explaining:

Not long ago American society took for granted the rough correlation between marriage and creation of new life, a vision under which limiting marriage to opposite-sex couples seemed natural. Not long from now, if current trends continue, American society may define marriage in terms of affirming mutual love, a vision under which the failure to add loving gay couples seems unfair. Today’s society has begun to move past the first picture of marriage, but it has not yet developed a consensus on the second.[2]

Along with this analysis, the majority pointed to the fact the other circuits that have chosen to overturn state bans on same-sex marriage have not agreed on a consistent reason for doing so.[3]

Calling the majority’s opinion “an introductory lecture in Political Philosophy,” dissenting Senior Circuit Judge Martha Craig Daughtrey castigated the majority’s decision to “wait and see” and “let the people decide.”[4] She concluded, “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.”[5]

This decision has left some commentators cheering, as it has created exactly what Justice Ginsburg heralded it might take for the Supreme Court to grant certiorari in a same-sex marriage case: a circuit split.[6] Currently, the Fourth, Seventh, Ninth and Tenth Circuits stand in disagreement with the Sixth Circuit.  Despite speculation about whether litigants would petition for hearing en banc at the Sixth Circuit first, there has been some indication of an immediate appeal to the Supreme Court.[7] Amidst the ongoing national debate, the Supreme Court may now be forced to take up the question it neatly sidestepped a little over a month ago.

In the meantime, the Sixth Circuit has provided some light reading for the wait. The opinion, including a description of the facts of each case, can be found here.

[1] DeBoer v. Snyder, Nos. 14-1341, 14-3057, 14-3464, 14-5291, 14-5297, 14-5818, slip op. at 7 (6th Cir. 2014); Id. at 42 (“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.”).

[2] Id. at 36-37.

[3] Id. at 16.

[4] Id. at 60 (Daughtrey, J. dissenting).

[5] Id. at 63-64 (Daughtrey, J. dissenting).

[6] Jonathan Capeheart, Hurray for the 6th Circuit rejection of gay marriage, Washington Post (Nov. 7, 2014),

[7] Lyle Denniston, Sixth Circuit: Now, a split on same-sex marriage, SCOTUS BLOG (Nov. 6, 2014, 4:50 pm),