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4 States' Gay Marriage Bans Are Constitutional: 6th Cir.

Gay marriage opponents got their first victory in a federal appeals court Thursday, as the 6th U.S. Circuit Court of Appeals upheld same-sex marriage bans as constitutional in Kentucky, Michigan, Ohio, and Tennessee.

Two judges on the 6th Circuit's three-judge panel determined that the issue of defining marriage should be left to the states, not judges, reports the Detroit Free Press. Meantime, the lone dissenting judge blasted her colleagues, calling the opinion more of a "TED talk" than a constitutional analysis. The 2-1 decision is now the rule of law in the four states mentioned above.

Why did the 6th Circuit uphold these states' gay marriage bans when so many other courts have struck down similar laws?

Federalism and Sowing the Windsor

Gay marriage advocates have enjoyed somewhat of a halcyon year, with almost every major federal court decision siding with the dismantling of gay marriage bans. Much of that success has been attributed to the Supreme Court's decision in Windsor, which forced the federal government to recognize same-sex marriages as legal. Some of that can be explained by the powerful imagery of respect and dignity in Justice Kennedy's majority opinion, and ironically some of it can also be attributed to Justice Scalia's trademark sarcasm.

But one of the things that the Supreme Court majority was intent on limiting in Windsor was how its opinion affects state laws. Although Windsor speaks at length about the moral injustice and damage done to children by not recognizing same-sex couples with the same dignity as those in "traditional" marriages, the High Court stopped short of asking the states to do the same moral calculus.

The 6th Circuit appears to have taken this message of Windsor to heart in penning a majority opinion that emphasizes the role of federalism in America -- over any of the actual case law issued in the last year.

Rational Basis Review

By applying rational basis review, the appellate court found that the state's proffered reasons for barring gay marriage (children, tradition, etc.) were good enough to meet this low bar. The court declined, as other courts have done, to apply any form of heightened scrutiny by finding that gays and lesbians were a protected class.

Thus the 6th Circuit enters a rarefied circle, including a Louisiana federal district court, in ruling that gay marriage bans are rational in the face of at least a decade of sociological research.

As USA Today reports, the split among federal circuit courts on the gay marriage issue "virtually guarantees Supreme Court review."

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