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Court backs states’ rights to ban gay marriage

A Philadelphia resident held up a flag during a rally for gay marriage on Independence Mall in Philadelphia last year.Matt Slocum/AP/File

NEW YORK — A federal appeals court in Ohio upheld Thursday the right of four states to ban same-sex marriage, contradicting rulings by four similar courts and almost certainly sending the issue on a rapid trajectory to the Supreme Court.

The much-anticipated decision, written by Judge Jeffrey S. Sutton, an appointee of President George W. Bush, overturned lower court rulings in Kentucky, Michigan, Ohio, and Tennessee that were in favor of same-sex marriage.

“This is the circuit split that will almost surely produce a decision from the Supreme Court, and sooner rather than later,” said Dale Carpenter, a professor of constitutional law at the University of Minnesota. “It’s entirely possible that we could have oral arguments in coming months and a Supreme Court decision by next summer.”

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In the 2-1 decision Thursday, by a panel of the US Court of Appeals for the Sixth Circuit, Sutton said that it appeared inevitable the law would allow same-sex couples to marry, but the more fundamental question, he wrote, is: “Who decides?”

Sutton said that such a profound change in the institution of marriage should be decided not by “an intermediate court” like his but by “the less expedient, but usually reliable, work of the state democratic processes.”

He dismissed the reasoning issued in the last year by several other federal courts, which have ruled that barring same-sex marriage violated equal protection or due process clauses of the Constitution and have no rational basis.

Michael C. Dorf, a constitutional expert at Cornell Law School, said that “the essence of this opinion is that the issue should be left to the democratic process or to the Supreme Court, but I’m not going to do this as an appeals court judge.”

In a stinging dissent, Judge Martha Craig Daughtrey, an appointee of President Clinton, called the majority opinion “a largely irrelevant discourse on democracy and federalism” that treated the couples involved as “mere abstractions” rather than real people suffering harm because they were denied equal status.

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Gay rights groups and lawyers for the plaintiffs in the four affected states criticized the ruling.

“We’re extremely disappointed for the families in these four states, but this decision highlights the need for the US Supreme Court to right this injustice,” said Susan Sommer, the director of constitutional litigation for Lambda Legal, which helped argue one of the six cases involved in the decision Thursday.

The Sixth Circuit ruling was not a wholesale surprise; Sutton had expressed similar concerns about federalism and reliance on the democratic process at the hearing on the cases in August. He was joined in the opinion by Judge Deborah L. Cook, another Bush appointee.

Since then, the Supreme Court, by declining to hear appeals, has allowed rulings in favor of same-sex marriage from four other circuit courts to take effect. The number of states with same-sex marriage rose last month to 32, plus the District of Columbia, with shifts in three more states within those circuits all but certain.

In declining to hear the appeals in October, justices did not rule on the merits of the cases. But by acquiescing in the court-mandated spread of same-sex marriage to many states, justices effectively created a new social reality, making it extremely unlikely, many legal experts say, that the court would find such bans constitutional.

“If the court reversed those decisions, it would create chaos,” Dorf said. “It would seem highly unlikely, but technically they can do it.”

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Evan Wolfson, president of the group Freedom to Marry, said: “Today’s ruling is completely out of step with the Supreme Court’s clear signal last month, out of step with the constitutional command as recognized by nearly every state and federal court in the past year, and out of step with the majority of the American people.” He called on the Supreme Court to take up the issue quickly and provide national resolution.

But opponents of same-sex marriage, who see states-rights arguments as their last best hope in the courts, praised Thursday’s decision.

“The people of every state should remain free to affirm marriage as the union of a man and a woman in their laws,” said Byron Babione, senior counsel with Alliance Defending Freedom, a Christian legal group that has argued several same-sex marriage case. “As the Sixth Circuit rightly concluded, the Constitution does not demand that one irreversible view of marriage be judicially imposed on everyone.”