IN SEPTEMBER, Supreme Court Justice Ruth Bader Ginsburg told an audience at the University of Minnesota Law School that the public should pay close attention to any upcoming decision on state gay marriage bans in the Sixth Circuit of the US Court of Appeals. A decision by the federal appeals court in Cincinnati allowing same-sex marriage bans to stand, she said, would mean “there will be some urgency” for the Supreme Court to step in and make a definitive ruling on same-sex marriage — something that the justices so far have dodged.
That decision came Thursday, when a panel of Sixth Circuit judges ruled, 2-1, to overturn lower court decisions in Kentucky, Michigan, Ohio, and Tennessee that favored same-sex marriage. The judges’ decision, which was immediately condemned by gay rights groups as mean spirited and political in nature, seems likely to set up an appeal before the nation’s highest court next year, just as Ginsburg predicted. In fact, the trajectory of this issue now seems inevitable. As CNN legal analyst Jeffrey Toobin put it, “They can’t duck it anymore.” And the American Civil Liberties Union said it would immediately file for a review by the nation’s highest court. This is the proper forum to settle the legal dispute and extend a fundamental human right to all Americans.
Last month, decisions in three other federal appeals courts went the other way, when judges struck down same-sex marriage bans in Utah, Oklahoma, Virginia, Wisconsin, and Indiana. All told, gay couples can marry in 32 states and the District of Columbia — so a majority of Americans already have access to the benefits of equal marriage and the stability it brings to their families. Polls also show a welcome generational shift: 78 percent of Americans aged 18 to 29 support gay marriage.
The Sixth Circuit opinion, written by Judge Jeffrey Sutton, an appointee of George W. Bush, seems to turn on the question of whether the decision is best left to “state democratic processes” or the Supreme Court, rather than the appeals court system. The Supreme Court has long recognized the fundamental nature of the right to marry, and for many courts, that has compelled recognition of same-sex marriage. In Loving v. Virginia in 1967, a landmark case that invalidated state laws prohibiting interracial marriage, the court notably stated: “Under our Constitution, the freedom to marry or not marry a person of another race resides with the individual and cannot be infringed by the State.” In 1978, the court picked up on this theme in Zablocki v. Redhail, which involved marriage and child support. The justices wrote: “Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals.”
It would be welcome news to gay and lesbian families across the country if the high court resolves the question of same-sex marriage as a matter of constitutional law. Although the ultimate outcome of a Supreme Court ruling is far from certain, hopefully justices will be unwilling to undo a fundamental right that has now been recognized in a majority of states. It is time that equal marriage be applied uniformly throughout the nation.