The Sixth Circuit Waiting Game

Last week was a very big week for marriage equality in the United States.

The U.S. Supreme Court begins each new term in October. This year, as the Court convened, three same-sex marriage decisions from three different U.S. Circuit Courts of Appeals were on deck. The states of Oklahoma, Utah, Wisconsin, Indiana, and Virginia submitted petitions for writs of certiorari, asking the Supreme Court to reverse the lower court decisions striking down their gay marriage bans. The general consensus was that the Court would take up at least one of the cases during the term.

General consensus was wrong. The Supreme Court denied certiorari in each of the cases, meaning the rulings of the Fourth, Seventh, and Tenth Circuits would stand as the prevailing law, and all states within those Circuits would be bound to abide by them. This non-action by the Court immediately impacted more than just the five states with rulings. The same-sex marriage bans in twelve total states were either immediately dead or soon to be eliminated.

Then, in the same week, the Ninth Circuit Court of Appeals affirmed the demise of bans in Nevada and Idaho (and spelled the end for the bans in Montana, Arizona, and Alaska). As of the time of this writing, same-sex marriage is fully legal in 29 states and D.C., with nearly 60% of all Americans living in states with marriage equality.

This incredible momentum toward equality isn't the entire story, however. The Supreme Court's unwillingness to reconsider any same-sex marriage cases to this point doesn't mean they won't in the future. As Justice Ruth Bader Ginsburg suggested in a recent interview, if one of the remaining Circuits left to rule on the issue should uphold a state's ban, a "Circuit split" would be created and the Court would likely change its tune.

In some Circuits, the issue is dead without a fight. The First, Second, and Third Circuits consist of states that have already legalized same-sex marriage before the United States v. Windsor opinion. The Fourth, Seventh, Ninth, and Tenth Circuits have ruled unanimously against the bans.

But the Fifth Circuit (Texas, Louisiana, Mississippi), the Sixth Circuit (Kentucky, Ohio, Michigan, Tennessee), and the Eleventh Circuit (Florida, Georgia, Alabama) each have cases pending before them. The Sixth Circuit is the farthest along, having completed the briefing process and having heard oral arguments in cases from each of its states on August 6. The Fifth and Eleventh Circuits are still in the briefing stage.

The Sixth Circuit, before which are Kentucky's two cases (Bourke v. Beshear and Love v. Beshear), is considered a bit of a wild card. The three-judge panel was widely considered conservative (Judges Jeffrey Sutton and Deborah Cook were appointed by George W. Bush) with just one Democrat-appointed member, Senior Judge Martha Craig Daughtrey.

But assumptions aside, the oral arguments in the Sixth Circuit were extremely civil, without the sharp contrasts in opinions among the judges evident in the Fourth and Tenth Circuits. Judge Cook was mostly silent. Judge Daughtrey was highly critical of the states defending the bans. But Judge Sutton, the lead judge on the panel and considered by most as being (or at least having been) a top conservative prospect for a Supreme Court nomination, balanced his questions between both sides. He suggested to the same-sex marriage plaintiffs that the political process could be a better route for equality rather than the court system, but acknowledged the long history of discrimination they suffered and was unsympathetic toward state arguments about tradition and legal confusion.

If the Sixth Circuit rules as all of its sister Circuits so far have, then same-sex marriage could almost immediately become legal in four more states (including Kentucky). But if Judge Sutton and Judge Cook are inclined to uphold the state bans, then one or more of the cases from that Circuit could be headed to the U.S. Supreme Court to decide the issue once and for all.

And so far, all signs seem to indicate that the Supreme Court will affirm the court decisions striking down the same-sex marriage bans. If they're willing to let the rulings of the Fourth, Seventh, Ninth, and Tenth Circuits stand, bringing marriage equality to a dozen more states, it seems quite unlikely that they would snatch the licenses out of the hands of newly-married couples all across the country at some point later on.

As a member of the legal team in the Kentucky marriage cases, I often get asked by friends and media if I know when the Sixth Circuit will rule. Of course I do not. At the end of oral arguments in August, Judge Sutton said only that a ruling would come "soon," but a lot has changed since then. A ruling could come any day now.

Of course I hope for a ruling in favor of marriage equality. My clients, and same-sex couples like them from Michigan to Tennessee, have waited long enough to enjoy the same rights opposite-sex couples take for granted.