Updated: 6:20 p.m. EST
CINCINNATI — The expanding legal acceptance of same-sex marriage in the United States hit a roadblock on Thursday when a federal appeals court panel upheld anti-gay marriage laws in four states, making it more likely that the Supreme Court will take up the issue.
The 6th U.S. Circuit Court of Appeals panel that heard arguments on gay marriage bans or restrictions in Ohio, Michigan, Kentucky and Tennessee on Aug. 6 split 2-1, with Circuit Judge Jeffrey Sutton writing the majority opinion for himself and a fellow George W. Bush appointee, while a Bill Clinton appointee disagreed.
The ruling concluded that states have the right to set rules for marriage and that such change as expanding a definition of marriage that dates “back to the earliest days of human history” is better done through political processes.
“When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers,” Sutton wrote, adding that it’s better to have change “in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.”
Cincinnati attorney Al Gerhardstein, who represented gay plaintiffs in two cases in which he gained lower-court victories, said he will appeal to the Supreme Court.
“We’re disappointed in the ruling. … We believe the U.S. District Court and the dissent on the three-judge panel got it right,” he said.
Attorneys could seek a review of the panel’s decision by the full circuit court, but with mostly Republican-appointed judges they likely will try to move the issue directly on to the Supreme Court, seeking a definitive ruling.
The dissenting judge suggested that might have been the goal of Sutton and Judge Deborah Cook in their ruling.
“Because the correct result is so obvious, one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split,” Judge Martha Craig Daugherty wrote, saying getting the case to the Supreme Court would put “an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threaten.”
The president of pro-gay marriage group Freedom to Marry, Evan Wolfson, blasted the ruling as “on the wrong side of history.”
He called it “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.”
“This anomalous ruling won’t stand the test of time or appeal,” he said in a statement.
In October, the Supreme Court surprisingly turned away appeals from five states seeking to uphold their marriage bans, even with the gay couples who won in the lower courts joining with the states to ask for high court review.
Justice Ruth Bader Ginsburg explained in the weeks following the court’s denial of those appeals that the lack of a split in the appellate courts made Supreme Court review of the issue unnecessary.