By David G. Savage
A federal appeals court panel in Ohio upheld four states' bans on gay marriage Thursday, setting the stage for the Supreme Court to rule finally on the constitutionality of same-sex marriage.
The ruling by the 6th U.S. Circuit Court of Appeals is the first by a federal appellate court to formally deny gay couples a right to marry. It follows a year in which federal judges across the nation repeatedly ruled that since marriage is a fundamental right, states had no justification for denying marriage to gays and lesbians.
Judge Jeffrey Sutton, writing for a 2-1 majority, said the issue should be decided in the political arena, not in the courts. The opinion upheld bans on gay marriage in Ohio, Michigan, Kentucky and Tennessee.
"Better in this instance, we think, to allow changes through the customary political processes, in which the people, gay and straight alike ... (meet) as fellow citizens seeking to resolve a new social issue in a fair-minded way," he wrote.
"We must keep in mind that something can be fundamentally important without being a fundamental right under the Constitution. Otherwise, state regulations of many deeply important subjects _ from education to health care to living conditions to decisions about when to die _ would be subject to unforgiving review. They are not," he added.
In dissent, Judge Martha Daughtrey retorted that Sutton's opinion "would have made an engrossing TED talk, or possibly an introductory lecture in political philosophy," but said it failed to address the legal question of whether a ban on same-sex marriage violated equal protection under the Constitution.
If judges can't address perceived wrongs put in place by the voting majority, she wrote, "our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams."
Last month, the Supreme Court refused to rule in cases from five states where judges had struck down the bans on gay marriage. Justices commented that since all the lower courts agreed, there was no need for their intervention.
Since then, advocates for both sides were focused on the pending ruling from the 6th Circuit Court, and Thursday's decision will probably lead to speedy appeals to the high court.
Under the Supreme Court's calendar, appeals that are ready by late January can be granted a review in the spring and decided by the end of the term in June. Otherwise, they are pushed back to the fall.
If gay rights advocates and state lawyers agree to move quickly on the appeals, they could have their cases ready by January.
Gay rights groups denounced the decision and called it an outlier.
"While a tidal wave of courts around the nation have struck down marriage bans, this decision leaves 6th Circuit states in a backwater and, worst of all, injures same-sex couples and their children," said Susan Sommer, director of constitutional litigation for Lambda Legal.
Michigan Attorney General Bill Schuette, whose office argued before the panel to uphold the state's ban on gay marriage, welcomed the ruling and said he looked forward to a high court appeal.
"As I have stated repeatedly, the U.S. Supreme Court will have the final word on this issue. The sooner they rule, the better, for Michigan and the country," Schuette said.
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