By Zoe Tillman, From Legal Times

A divided U.S. Court of Appeals for the Sixth Circuit on Thursday reversed a series of lower court rulings that had struck down bans on same-sex marriage. Judge Jeffrey Sutton, writing for the majority, said the question of whether to allow same-sex marriage shouldn’t be decided by the courts.

“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. “Better in this instance, we think, to allow change through the customary political processes, 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.

The court upheld laws in Kentucky, Michigan, Ohio and Tennessee that banned same-sex marriage or prohibited the recognition of same-sex couples legally married in other jurisdictions.

The American Civil Liberties Union released a statement saying they planned to immediately seek review in the U.S. Supreme Court.

“We believe it’s wholly unconstitutional to deny same sex couples and their families access to the rights and respect that all other families receive,” said Chase Strangio, a staff attorney in the ACLU Lesbian Gay Bisexual and Transgender Project. “We will be filing for Supreme Court review right away and hope that through this deeply disappointing ruling we will be able to bring a uniform rule of equality to the entire country.”

Sutton was joined by Judge Deborah Cook. Senior Judge Martha Daughtrey dissented. Daughtrey wrote that Sutton and Cook had treated “both the issues and the litigants here as mere abstractions.”

“The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy,” Daughtrey wrote. “But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment.”

Attention shifted to the Sixth Circuit after the U.S. Supreme Court last month declined to hear same-sex marriage cases from five states in the Fourth, Seventh and Tenth Circuits. Until now, no federal appeals court has upheld a state ban on same-sex marriage, and court-watchers have speculated that the high court wouldn’t rush to consider the issue absent a split among the circuits.

A Ninth Circuit panel on Oct. 7 struck down same-sex marriage bans in Idaho and Nevada. Lawyers for Idaho unsuccessfully tried to block same-sex marriages from taking place pending an appeal. On Oct. 13, the Coalition for the Protection of Marriage, in support of Nevada’s ban, argued in court papers that there was evidence the case was not randomly assigned to the Ninth Circuit judges who struck down the state’s prohibition against gay marriage.

Same-sex marriage cases from Texas and Florida are pending before the Fifth and Eleventh Circuits, respectively. The Fifth Circuit agreed recently to expedite its review of the same-sex marriage ban in Texas.

In Thursday’s opinion, Sutton acknowledged the decisions issued by the other circuit courts as well as the Supreme Court’s decision not to review those cases. Responding to the question of whether the high court was signaling that a right to same-sex marriage was “inevitable,” Sutton answered: “Maybe; maybe not.”

“Even if we grant the premise and assume that same-sex marriage will be recognized one day in all fifty States, that does not tell us how—whether through the courts or through democracy,” he wrote.

Sutton turned to a one-sentence Supreme Court order from 1972 in Baker v. Nelson, in which the high court rejected a challenge brought by a gay couple who were denied a marriage license in Minnesota. Sutton said that order didn’t conflict with the Supreme Court’s 2013 decision in United States v. Windsor striking down a key provision of the federal Defense of Marriage Act as unconstitutional.

“Windsor invalidated a federal law that refused to respect state laws permitting gay marriage, while Baker upheld the right of the people of a State to define marriage as they see it. To respect one decision does not slight the other,” he said.

Daughtrey, in her dissent, said the decisions from the other four circuits to rule to date provided “a rich mine of responses” to the reasons state officials gave for barring same-sex marriage.

“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 regarding the legality of samesex marriage that could prompt a grant of certiorari by the Supreme Court and an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens,” Daughtrey wrote.

During Sixth Circuit arguments on Aug. 7, Sutton seemed to be the swing vote. Daughtrey asked questions that appeared more sympathetic to supporters of same-sex marriage, while Cook tended to steer the discussion back to states’ rights issues. (Listen to audio of the Sixth Circuit argument here.)

During arguments over Michigan’s constitutional amendment banning same-sex marriage, Sutton pressed the state’s solicitor general to explain the justification for the ban. Sutton said that although marriage historically was tied to procreation, “modern conceptions of marriage are more about love, affection and commitment.”

Sutton, however, also repeatedly asked same-sex marriage supporters about the logic of pushing for change in the courts, as opposed to trying to change the minds of voters. Sutton asked lawyers on both sides to address Baker, questioning whether the appeals court was “stuck” with Baker as the binding precedent from the Supreme Court.

Appointed by George W. Bush and confirmed by the Senate in 2003, Sutton is a former partner at Jones Day and solicitor general for Ohio. His name was included in recent years on lists of potential appointees to the Supreme Court under a Republican president.

In 2011, Sutton became the first Republican appointee on a federal appeals court to uphold the individual mandate of the Affordable Care Act. The law’s supporters heralded Sutton’s role in the panel’s divided opinion, given his history as a states’ rights advocate. The Supreme Court upheld the mandate the following year.

IMAGE: Jeffrey Sutton. Photo: Diego M. Radzinschi/NLJ

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