Why excoriated? This is how the court system works. Justice Ruth G. said to watch the 6th about six weeks ago. The inside story may be (I don't know) that the 2-1 decision was made so that it would be referred to the entire 6th, which may very well reverse the decision. But if not, then SCOTUS will probably accept it.
Interesting.
Good catch- I didn't notice it was not the full court of Appeals.
I would expect that an issue as hot as this will be referred to the entire 6th.
Anyway- system working as it should- this is just the first sign of any serious legal disagreement in the judiciary.
Interesting article on it
Sixth Circuit: Now, a split on same-sex marriage
Breaking ranks with a wide array of other federal courts, and coming close to setting up almost certain review by the Supreme Court, a divided federal appeals court in Cincinnati on Thursday
upheld bans on same-sex marriage in four states. Dividing two-to-one, the U.S. Court of Appeals for the Sixth Circuit overturned lower court rulings in cases from Kentucky, Michigan, Ohio and Tennessee.
Probably the only way that this ruling would not predictably lead to Supreme Court review, it appears, is if there is a request for en banc review in the Sixth Circuit, and that request is granted.
The decision was based largely on the two-judge majority’s view that the question of whether to move the nation toward same-sex marriage in every state is for the people or the states, and not for judges applying the national Constitution.
Circuit Judge Jeffrey S. Sutton, the author of the main opinion, wrote: “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. 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 opinion was joined by Circuit Judge Deborah L. Cook. Senior Circuit Judge Martha Craig Daughtry dissented, calling the Sutton opinion “an introductory lecture in political philosophy,” but failing, as an appellate court decision, “to grapple with the relevant constitutional issue in this appeal.”
At this point, the decision conflicts directly with federal appeals courts in the Fourth, Seventh, Ninth and Tenth Circuits — precisely the kind of division of judgment that ordinarily will lead the Supreme Court to step in to resolve the split, especially on an issue of fundamental constitutional significance.
So far, the Court has passed up review of any of the lower court decisions striking down state bans, and it has even refused to put lower-court decisions on hold until appeals could be filed and decided by the Justices. In widely reported public comments, Justice Ruth Bader Ginsburg has indicated that the main reason the Court bypassed the cases up to that point was that there was no current split among the courts of appeals.
Now there is a split, and it is a stark one.
In one sweeping decision, the Sixth Circuit has given all of the states in its geographic region a victory for their bans on initial marriages of same-sex couples and their bans on official recognition of gay and lesbian marriages performed outside of the couples’ home states. By contrast, other federal courts have nullified identical bans in thirteen states just over the past few months, with the prospect that the number would soon rise of fifteen — making a total of thirty-five states, plus Washington, D.C.
The challengers in the cases in the four states of the Sixth Circuit now have two legal options:
First, they can ask the full Sixth Circuit bench (the en banc court) to reconsider their cases, and if the court does that, then the panel decision released Thursday would be wiped out and the en banc court would start fresh. The loser at that level could then seek Supreme Court review.
Second, the challengers can now move directly to the Supreme Court; they do not have any legal obligation to seek further review in the Sixth Circuit Court. If they take that path, it would be up to the Justices to decide for or against review, and it would take the votes of only four of the nine Justices to agree to hear the case.
One argument for going directly to the Supreme Court has already been made, by advocacy groups and lawyers on both sides of this constitutional controversy: that is, that the time is now to get the issue resolved, once and for all.
If the challengers wait until the Sixth Circuit Court went through en banc review (assuming that were granted), the issue almost certainly would not reach the Supreme Court for consideration in the current Term. If a case is filed with the Justices soon, by contrast, it could be heard and decided before the Justices complete this Term early next summer. Any case that the Justices accept for review by mid-January would be decided in the current Term.
Sixth Circuit Now a split on same-sex marriage SCOTUSblog
