BY MICHAEL DOYLE

The Supreme Court may now be forced to deal with same-sex marriage after all, as a divided appeals court on Thursday upheld state bans.

The long-awaited decision by the U.S. Court of Appeals for the Sixth Circuit upholds the same-sex marriage bans instituted by voters in Kentucky, Michigan, Ohio and Tennessee.

The decision also sets up a conflict with rulings in other appellate circuits, where judges have struck down the bans. When appellate circuits split, the Supreme Court steps in to resolve the differences.

The Sixth Circuit’s majority decision, by well-respected Republican appointee Jeffrey Sutton, concluded voters should be entrusted with the decision about marriage.

“Is this a matter that the National Constitution commits to resolution by the federal courts, or leaves to the less expedient, but usually reliable work of the state democratic processes?” Sutton asked rhetorically.

Earlier this year, the Supreme Court declined to hear same-sex marriage cases. The court did not offer an explanation at the time, but the lack of a division among appellate circuits was widely thought to be a reason.

Sutton acknowledged that “we cannot deny the lamentable reality that gay individuals have suffered prejudice in this country, sometimes at the hands of public officials,” but added that “the states’ undoubted power over marriage provides an independent basis for reviewing the laws before us with deference rather than with skepticism.”

The appellate court’s decision was lambasted by same-sex marriage advocates and by Judge Maartha Dougherty, who dissented.

“The majority opinion…fundamentally misunderstands the text and history of the Fourteenth Amendment, barely engaging with the words and meaning of the Constitution,” stated Constitutional Accountability Center Chief Counsel Elizabeth Wydra. “If he had taken the time to consider the Constitution’s text and history, he would have discovered that the Fourteenth Amendment guarantees marriage equality for everyone.”

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