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Appellate ruling on gay marriage could send issue to high court

Tribune Washington Bureau
Md. senator says 6th Circuit Court's same sex marriage ruling will take issue to Supreme Court.

A federal appeals court panel in Ohio upheld four states' bans on gay marriage Thursday, setting the stage for the Supreme Court to rule finally on the constitutionality of same-sex marriages.

The ruling by the 6th Circuit Court of Appeals is the first by a federal appellate court to formally deny gay couples a right to marry.

It follows a year in which federal judges across the nation repeatedly ruled that since marriage is a fundamental right, states had no justification for denying marriage to gays and lesbians.

The opinion upheld bans on gay marriage in Ohio, Michigan, Kentucky and Tennessee.

Maryland state Sen. Jamie B. Raskin, a Democrat from Montgomery County and a constitutional lawyer, said the federal court ruling would have no effect on Maryland law allowing same-sex unions, but he predicted that it would deliver the issue to the high court's doorstep.

It's now "overwhelmingly likely the Supreme Court will certify the case for hearing," Raskin said.

He called the appeals court decision "totally irrelevant" to Maryland's law, which was enacted via voter referendum in 2012. "We're in the 4th Circuit, not the 6th," Raskin said, "and we have a state law that allows everyone to get married."

In the 6th Circuit ruling, Judge Jeffrey Sutton, writing for a 2-1 majority, said the issue of same-sex marriage should be decided in the political arena, not in the courts.

"Better in this instance, we think, to allow changes through the customary political processes, in which the people, gay and straight alike … [meet] as fellow citizens seeking to resolve a new social issue in a fair-minded way," he wrote.

"We must keep in mind that something can be fundamentally important without being a fundamental right under the Constitution. Otherwise, state regulations of many deeply important subjects — from education to health care to living conditions to decisions about when to die — would be subject to unforgiving review. They are not," he said.

In dissent, Judge Martha Daughtrey said Sutton's opinion failed to address the legal question of whether a ban on same-sex marriages violates equal protection under the Constitution.

If judges can't address perceived wrongs put in place by the voting majority, she wrote, "our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams."

Last month, the Supreme Court refused to rule in cases from five states in which judges had struck down the bans on gay marriage.

Justices commented that since all the lower courts agreed, there was no need for their intervention.

Since then, advocates for both sides were focused on the pending ruling from the 6th Circuit Court, and Thursday's decision will likely lead to speedy appeals to the high court.

Under the Supreme Court's calendar, appeals that are ready by late January can be granted a review in the following spring and decided by the end of the term in June.

Otherwise, they are pushed back to the fall.

If the gay-rights advocates and state lawyers agree to move quickly on the appeals, they could have their cases ready by January.

Gay-rights groups denounced the decision and called it an outlier.

"While a tidal wave of courts around the nation have struck down marriage bans, this decision leaves 6th Circuit states in a backwater and, worst of all, injures same-sex couples and their children," said Susan Sommer, director of constitutional litigation for Lambda Legal.

Michigan Attorney General Bill Schuette, whose office argued before the panel to uphold the state's ban on gay weddings, welcomed the ruling and said that he looked forward to a high court appeal.

"As I have stated repeatedly, the U.S. Supreme Court will have the final word on this issue. The sooner they rule, the better, for Michigan and country," Schuette said.

Baltimore Sun reporter Colin Campbell contributed to this article.

david.savage@tribune.com

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