We'll admit it: We were pretty excited for yesterday's marathon oral arguments at the Sixth Circuit. How often does a fundamental civil rights issue get hashed out in court? How often are five cases and four states' laws addressed all at once, marathon-style?
But as unique as these cases are procedurally, the truth is this: Whatever the Sixth Circuit holds in a few weeks or months, it'll likely be irrelevant.
What Happened Wednesday?
According to most accounts, oral arguments were inconclusive. (You can, of course, draw your own conclusions -- recordings of the oral arguments are available online.)
According to the Detroit Free Press, Judge Jeffrey Sutton was constantly pestering both sides about whether it would be better to leave it to the states and the will of the voters -- a battle for hearts and minds over time. Judge Deborah Cook didn't say much at all, while Judge Craig Daughtrey (the sole liberal) was squarely on the side of gay rights activists.
At one point, Daughtrey asked Ohio attorney Eric Murphy how long it took for women to gain the right to vote, using the state-by-state approach.
The answer? Seventy-eight years, plus a constitutional amendment.
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What If They Rule Against the States?
Welcome to the party. Twenty-nine other courts have done the same recently, including the Tenth Circuit (twice) and the Fourth Circuit. Cert. petitions either have been filed or will be soon. And coming soon are marathon arguments in the Seventh and Ninth Circuits.
If the Sixth Circuit rules against the states, their decision will likely be held pending the inevitable appeal. And a 29-1 split means they'll probably be living up to that "most reversed" reputation, especially when the case is added to the dozens of others racing to reach the Supreme Court.
What If They Agree With the States?
For once, this might actually be a possibility. The panel, as we noted in our preview of oral arguments, contains two conservatives, both appointed by President George W. Bush. Of course, one of them (Sutton) is considered somewhat unpredictable and voted for Obamacare and the other (Cook), while on the Ohio Supreme Court, struck down a law that criminalized making "offensive solicitations" to persons of the same sex.
If both stick to the "conservative" side (to be fair, many of the 29 pro-equality court rulings have come from conservative judges, so let's say the really conservative side), the likely result would be a circuit split. What would that mean? There would be a wee bit more pressure on the Supreme Court to take the case.
Either Way: SCOTUS
But the Court is going to address gay marriage either way. The four liberal justices will likely vote to grant certiorari, perhaps in one of the three cases that will be waiting for them when they return in September. Justice Anthony Kennedy has made his viewpoint known as well, so there's a fifth vote.
The smart money is not only on a cert. grant, but on an actual win on the merits for gay marriage at the Court next term. The Sixth Circuit's opinion? It'll be a footnote at best.
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- Michigan Same Sex Marriage, Remembering Judge Kennedy, and More (FindLaw's U.S. Sixth Circuit Blog)