By a 2-1 vote, a federal appeals court in Cincinnati on Thursday upheld the right of states to ban same-sex marriage, overturning lower court decisions in Kentucky, Michigan, Ohio and Tennessee that found such restrictions to be unconstitutional.
The long-awaited decision, written by Judge Jeffrey S. Sutton, an appointee of President George W. Bush, contradicted rulings by four other federal circuit courts and appeared almost certain to force the Supreme Court to decide the same-sex marriage issue for the nation.
"This is the circuit split that will almost surely produce a decision from the Supreme Court, and sooner rather than later," said Dale Carpenter, a professor of constitutional law at the University of Minnesota. "It's entirely possible that we could have oral arguments in coming months and a Supreme Court decision by next summer."
In October, the Supreme Court declined to take up appeals court rulings allowing same-sex marriage in five states.
In Thursday's decision, Sutton said that it appeared inevitable that the law would allow same-sex couples to marry, but the more fundamental question, he wrote, is: "Who decides?"
Sutton said that such a profound change in the institution of marriage should be decided not by "an intermediate court" like his, but by "the less expedient, but usually reliable, work of the state democratic processes." He dismissed the reasoning issued in the last year by several other federal courts, which have ruled that barring same-sex marriage violated equal protection or due process clauses of the Constitution and have no rational basis.
Michael C. Dorf, a constitutional expert at Cornell Law School, said that "the essence of this opinion is that the issue should be left to the democratic process or to the Supreme Court, but I'm not going to do this as an appeals court judge."
In a stinging dissent, Judge Martha Craig Daughtrey, an appointee of President Bill Clinton, called the majority opinion "a largely irrelevant discourse on democracy and federalism" that treated the couples involved as "mere abstractions" rather than real people suffering harm because they were denied equal status.
Gay rights groups and lawyers for the plaintiffs in the four affected states criticized the ruling.
"We're extremely disappointed for the families in these four states, but this decision highlights the need for the U.S. Supreme Court to right this injustice," said Susan Sommer, the director of constitutional litigation for Lambda Legal, which helped argue one of the six cases involved in Thursday's decision.