Better late than never, though we're sure the Court would've rather the issue of gay marriage had been addressed never. Avoiding the issue might've been possible, had the circuit courts stayed in concert. Now, the Supreme Court may not have a choice.
A few months back, Justice Ruth Bader Ginsburg said that the Sixth Circuit could force the Court's hand if it upheld gay marriage bans. Yesterday afternoon, it did just that, upholding bans in four states, calling RBG's bluff and putting SCOTUS in for all its chips.
Now, with a circuit split in place, and the ACLU already preparing their petition for certiorari (apparently en banc isn't happening?), the Court has to decide the issue of whether the Fourteenth Amendment guarantees marriage equality -- doesn't it?
6th Cir. Majority Sides With Every Failed Argument Ever Made
It's good for the children, they argued. Baker v. Nelson's one-liner about lack of a federal question precludes review, they pleaded. And for gosh sakes, let's be rational and apply the rational basis test to the four states' gay marriage bans.
Judge Jeffrey Sutton's opinion -- which begins with soft language about the seemingly inevitable march towards marriage equality, but then descends into what dissenting Judge Martha Daugherty quipped "would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy" -- eventually accepted all three of those arguments after hiding under the guise of vox populi.
Sutton said that this all "all come[s] down to the same question: Who decides? Is this a matter that the National Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?"
Or as my fellow FindLaw blogger put it:
Daugherty argued that the states offered no true justification for their laws and that the effect was to harm same-sex couples and their children. She also closed with this incredibly passionate statement:
More than 20 years ago, when I took my oath of office to serve as a judge on the United States Court of Appeals for the Sixth Circuit, I solemnly swore to "administer justice without respect to persons," to "do equal right to the poor and to the rich," and to "faithfully and impartially discharge and perform all the duties incumbent upon me ... under the Constitution and laws of the United States." ... If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.
Like two eager men on the way to Vegas, parties on both sides of states' gay marriage bans have been clamoring for a date with the folks on First Street. And that date, it would seem, would be now.
According to The New York Times' Adam Liptak, the ACLU said that it would file its petition for review "right away." And SCOTUSblog says that if the parties can agree to get all briefing done by mid-December, the Supreme Court could hear the case this term.
Maybe Judge Sutton was right when he said that it seemed like "the question is not whether American law will allow gay couples to marry; it is when and how that will happen." And, intentionally or not, he did exactly what was needed for that to happen nationwide: rule against marriage equality and force a Supreme Court showdown.
Your move, SCOTUS.