November 10, 2014
On Nov. 6, 2014, a three-judge panel for U.S. Court of Appeals for the Sixth Circuit reversed the district court rulings of six cases from Ohio, Michigan, Tennessee and Kentucky. In each of these states, a federal judge had ruled in favor of marriage for same-sex couples, and all six rulings were appealed to the 6th Circuit. The Nov. 6 ruling upholds marriage bans in Ohio, Michigan, Tennessee and Kentucky and denies same sex couples the right to marry or have their marriages recognized in these states.
The 6th Circuit ruling does not change the fact that Chief Judge Richard Young's decision striking down Indiana's ban on same-sex marriage is final, and Indiana's case is over. Judge Young's June 25, 2014 decision was upheld by the U.S. Court of Appeals for the Seventh Circuit on Sept. 4, 2014. On Oct. 6, the U.S. Supreme Court declined to hear same-sex marriage cases from Indiana and four other states, which cleared the way for Indiana's same-sex marriages to become lawful and for Indiana to recognize the out-of-state same-sex marriages of Indiana residents.
One theory was that the reason the U.S. Supreme Court did not review ("take cert") on our same-sex marriage case or any of the other cases was that all the circuit courts had ruled one way, in favor of same-sex marriage. Now, because of the 6th Circuit decision, there is a split in the circuit courts. Plaintiffs in these lawsuits may ask the Supreme Court to review these cases and resolve the issue once and for all. There is a prevailing view that now that there is a circuit court split, the Supreme Court will take cert if asked.
If the Supreme Court were to rule that states could legally ban same-sex marriages by statute or constitutional amendment, such a ruling would not automatically void Chief Judge Young's decision striking down Indiana's ban. But such a ruling could open up the door for the State to file a motion for Judge Young to overrule his decision in our favor and reinstate Indiana's law. In this case he may have no choice but to follow the Supreme Court's guidance. However, even if Judge Young were to reverse his decision based upon a future Supreme Court decision, there may be arguments to be made that existing same-sex marriages entered into based on his earlier decision should be deemed valid.
The ACLU is guardedly optimistic that if the U.S. Supreme Court does review the 6th Circuit decision, our side will ultimately prevail. We believe it would be exceedingly difficult for the Court to rule against marriage equality where tens of thousands of same-sex couples have married after winning cases that would be called into question if the Court ruled against marriage equality. The ACLU in Indiana and across the country will remain vigilant in this fight as long as liberty and equality for same-sex couples is under threat.