In Gay-Marriage Battle, Eyes Turn to Cincinnati
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« on: January 12, 2015, 09:28:40 am »

On Monday, the U.S. Supreme Court decided it would not wade into the same-sex marriage debate, at least for the moment.

So where does that leave us? For now, looking to Cincinnati, Ohio, home to the Sixth U.S. Circuit Court of Appeals.

Again, we don’t know precisely why the court on Monday decided to punt on the same-sex marriage issue. But commentators suspect, based partly on comments made by Justice Ruth Bader Ginsburg in September, that a lack of a “circuit split” — or a well-defined disagreement between at least two federal appellate courts — is largely to blame for the reluctance.

The Sixth Circuit could provide that circuit split at any moment. In August, a three-judge panel of the Sixth Circuit heard arguments on challenges to same-sex marriage bans in Michigan and Kentucky, in addition to arguments in more narrowly focused cases out of Tennessee and Ohio.

The panel, made up of two George W. Bush appointees and one Bill Clinton appointee, asked probing questions of each side, including why the court was not bound by a 1972 case called Baker v. Nelson, in which the Supreme Court cast aside a challenge to Minnesota’s ban on same-sex marriage “for want of substantial federal question.”

One of the Bush appointees, Jeffrey Sutton, is a former Supreme Court law clerk to Justice Antonin Scalia and “is held in high esteem at the high court,” according to the National Law Journal’s Tony Mauro. According to Case Western University law professor Jonathan Adler, cited in Mr. Mauro’s article and present at the August arguments, only the Clinton appointee, senior Judge Martha Craig Daughtrey, seemed ready to strike down the marriage bans, Adler said.

Mr. Mauro also writes that “both sides are nervous about how the Sixth Circuit will rule in part because of its reputation as something of a renegade.” Like the Ninth Circuit, its counterpart on the west coast, “the Sixth in recent years has issued numerous rulings that got slapped down by the Supreme Court.”

And is the outcome at the Sixth Circuit likely to be influenced by Justice Ginsburg’s comments, or Monday’s developments at the high court?

There’s no way to know. But Mauro’s story suggests the answer is probably not.

[T]he focus on the appeals court is not likely to change the minds of the three judges who heard arguments on state bans . . . . If nothing else, the court’s usual practice is to vote on outcomes the same day as the argument, so the panel’s decision is set.

Appeals courts don’t typically face pressure to issue opinions within a certain time frame. But the Sixth Circuit ruling will likely come in upcoming weeks.

If the Sixth Circuit strikes down the states’ same-sex marriage bans, same-sex marriage opponents will still have other bites at the apple. The Fifth, Ninth and Eleventh Circuits all have same-sex marriage cases on their dockets as well.

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