SCOTUS will have to take it up now

Not every appeals court in the land is interested in a distorted interpretation of the Fourteenth Amendment's equal-protection clause:

A month ago, the Supreme Court ducked an opportunity to take on the issue of whether states could decide how to define marriage, apparently on the basis of a lack of a split in the appeals circuits. The Sixth Circuit stole that excuse from the high court yesterday, upholding traditional-marriage definitions in four states:

A federal appeals court panel upheld bans on same-sex marriage in four states Thursday, a break with other federal courts that makes it almost certain the Supreme Court must take up the issue of whether gay couples have a constitutional right to marry.

A panel of the U.S. Court of Appeals for the 6th Circuit in Cincinnati ruled 2 to 1 that although same-sex marriage across the nation is practically inevitable, in the words of U.S. Circuit Judge Jeffrey S. Sutton, it should be settled through the democratic process and not the judicial one.

The decision overturned lower-court rulings in Michigan, Ohio, Tennessee and Kentucky and makes the 6th Circuit the first appeals court to uphold state bans since the Supreme Court struck down part of the federal Defense of Marriage Act in 2013.

The Washington Post’s Robert Barnes notes a remark from Justice Ruth Bader Ginsburg after the demurral last month that the court didn’t see the need to take up cases that didn’t spark disagreement in lower circuits. Now Ginsburg and her colleagues have the disagreement, and will have to take up the case. The ruling itself challenges whether the judiciary itself should even be involved in the question, and the Supreme Court will have to be the final arbiter of that question as well.

Get ready for another round of howling and pomposity.

Ed Whelan at NRO provides a summary of the Sixth Circuit Court's reasoning:

1. The Supreme Court’s summary ruling in Baker v. Nelson (1972) binds federal courts of appeals to hold that state laws that define marriage as the union of a man and a woman are constitutional. The Court’s ruling last year in Windsor v. United States doesn’t overrule Baker, nor does it clash with it. Neither of the two preconditions for ignoring Supreme Court precedent applies. Nor do the Court’s recent denials of certiorari in other marriage cases have any bearing. (Slip op. at 13-17.)2. Under the original meaning of the Fourteenth Amendment, state marriage laws are clearly constitutional. (17-18.)3. State marriage laws easily survive rational-basis review. It is rational to define marriage as a male-female union because (a) governmental recognition of marriage operates to regulate the intended and unintended effects of male-female intercourse (19-21), and (b) it’s reasonable for the people of a state to assess how the benefits and burdens of redefining marriage are playing out in other states before they decide whether to take that step (21-22). “Any other approach would create line-drawing problems of its own.” (See 22-23.)4. State marriage laws do not reflect animus. (24-28.)5. There is no “fundamental right” to SSM. (28-31.)

6. Under Sixth Circuit precedent, rational-basis review applies to sexual-orientation classifications. Windsor says nothing to the contrary. (31-35.) 

7. Under an “evolving meaning” approach to the Constitution, the relevant measure is society’s values, not judges’ values. “Freed of federal-court intervention, thirty-one States would continue to define marriage the old-fashioned way.” (35-38.) 

Seems elegantly logical to moi.  We can be pretty sure how Ginsburg, Kagan and Sotomeyer see that matter, and  Thomas, Scalia and Roberts as well (although Roberts has a weird deviation or two in his track record).  Once again, all eyes will be on Kennedy.