Last month the Supreme Court indicated that it didn't want to wade into the gay-marriage debate unless there were contradictory decisions amongst lower courts. Well, last week they got their wish.
After a year in which federal courts have almost unanimously overturned marriage bans, the Sixth Circuit has now become the first federal appellate court to uphold such a ban. Writing for the majority, Judge Jeffrey Sutton ruled that federal courts should afford a high degree of deference to voters and politicians when it comes to deciding the constitutionality of laws.
That flies in the face of decisions from multiple other circuits. The Fourth, Ninth, and Tenth have all ruled that marriage bans are unconstitutional violations of the Due Process and Equal Protection clauses.
That means that the circuits are now in disagreement on whether marriage bans violate the U.S. Constitution. The time would appear to be ripe for the Supreme Court to step in and settle the matter, particularly since more litigation is pending in other states: Texas and Louisiana are due for a marriage ruling early in 2015.
The next step is for the Sixth Circuit plaintiffs to file petitions with the Supreme Court, which they have already indicated they plan to do. Those petitions are likely to come sometime within the next few weeks. The Supreme Court would then have to decide whether or not to take up the case, but there's no timeline for them to make that decision. They could defer a decision until 2015, or even 2016 if they wanted to take a slow approach.
In the meantime, equality organizers might need to start planning to overturn marriage at the ballot and in legislatures in certain states if the marriage bans aren't overturned soon by the Supreme Court.
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