The Sixth Circuit court decision marks the first such decision by a circuit court, differing with recent decisions in the Fourth, Seventh, Ninth, and Tenth Circuits where same-sex marriage bans were deemed unconstitutional. The First, Second, Third, Fifth, Eighth, Eleventh, and DC Circuits have not weighed in on the issue.
When appeals from the Fourth, Seventh, and Tenth Circuits were taken to the U.S. Supreme Court, the High Court declined to hear the cases.
When that happened, on October 6, 2014, it set off a chain reaction that resulted in, among other things, the legalization of same-sex marriage in Nevada.
In almost every case, the United States Supreme Court has discretion to hear an appeal or to reject an appeal. In the U.S. Supreme Court rules, three categories of cases are set forth for which the Supreme Court will consider an appeal (called granting certiorari):
1. where the decisions of different circuit courts differ from each
other on important federal issues;
2. where state supreme courts have decided important federal questions
in a way that conflict with either another state supreme court or
federal circuit court; or
3. where a circuit court has decided an important question that should
be settled by the U.S. Supreme Court or in a way that conflicts with other U.S. Supreme Court decisions.
The Sixth Circuit decision is significant because it creates a split among circuits, which is the first reason in the U.S. Supreme Court rules for granting certiorari and agreeing to decide an issue.
In October, when the U.S. Supreme Court declined to hear the appeals from the Fourth, Seventh, and Tenth Circuits, there was not yet a circuit split that necessitated intervention by the U.S. Supreme Court (though there was certainly division among state courts, which wouldhave justified the hearing of the case, and which was probably why so
many were surprised that the Supreme Court declined to hear the case).
Now that there is a divisive split, when the losing parties in the Sixth Circuit appeal the case to the U.S. Supreme Court, it is highly likely that the U.S. Supreme Court will hear the case, which could result in a decision as early as next summer. Such a decision would apply nationwide. If the U.S. Supreme Court finds bans on same-sex
marriage unconstitutional, in line with decisions from four circuit courts, then marriage in the U.S. between same sex couples would be uniformly allowed throughout the country.
If, on the other hand, the U.S. Supreme Court sides with the Sixth Circuit, overruling the decisions of the other four circuits, then presumably each state would be left to establish its own laws and constitutions with respect to same-sex marriage. This would be a boon to those opposed to same-sex marriage and to proponents of a state’s ability to write its own laws.
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Zachariah B. Parry is a civil litigation attorney and partner at his firm, Pickard Parry. He can be reached at 702-910-4300, through his firm’s website at www. pickardparry.com, or his direct email, firstname.lastname@example.org.