The Court of Appeals for the Sixth Circuit ruled in a 2-1 decision yesterday (Thursday) in Cincinnati, Ohio that states have the right to make same-sex marriage illegal. The decision was the result of challenges to gay marriage bans in Ohio, Michigan, Kentucky and Tennessee. Given the ninth, fourth, tenth and seventh Circuit Court of Appeals ruled the bans unconstitutional while the sixth circuit ruled it constitutional all but ensures the Supreme Court will weigh in on the issue, most likely in June 2015 or June 2016.
In October, the Supreme Court denied appeals from five states where appellate courts had ruled same-sex marriage bans illegal. Part of the court’s rationale for not hearing the cases was due to the fact that all appellate courts had uniformly ruled that same-sex marriage bans were unconstitutional. By denying the appeals, the Supreme Court effectively legalized same-sex marriage in a number of states.
The prospects of the sixth circuit decision being overturned is quite likely. The Supreme Court has previously ruled in favor of same-sex marriage, overturning the Defense of Marriage Act by a 5-4 margin in the 2013 United States v. Windsor. A 6-3 decision also ruled sodomy laws unconstitutional in 2003 in Lawrence v. Texas. The deciding vote on both of these cases was Anthony Kennedy, a Reagan-appointed justice who wrote the majority opinion in Lawrence v. Texas.
When the Supreme Court takes the case it is a distinct possibility that the court will deliver a broad decision that legalizes same-sex marriage in every state. In 1967 the Court took that tract in Loving v. Virginia, which nationally legalized interracial marriage. A ruling on gay marriage will be issued during the 2016 presidential primaries and could either reinvigorate the call for a constitutional amendment banning it or make the issue disappear from political discourse.