On August 8, the U.S. 6th Circuit Court of Appeals is taking on six cases that concern marriage equality, and two of those cases originated in Kentucky. While the consequences of this legal fight are significant for deciding marriage equality for Kentuckians, these decisions stand to lay out the course of the national fight for marriage equality over the next few years.
The cases as they stand
The first of Kentucky's cases is Bourke v. Beshear, which Judge John G. Heyburn II ruled on in February 2014. He determined that Kentucky's marriage ban violated the equal protection clause when used to prohibit the recognition of legal marriages performed in other states. Judge Heyburn also made the second ruling on appeal in the case of Love v. Beshear in July. In that case, Judge Heyburn determined that refusing to perform marriages violated the principle of equal protection.
Love v. Beshear puts Kentucky's issues in line with the case from Michigan, DeBoer v. Snyder, which addresses the state's marriage ban in its entirety. As in Bourke v. Beshear, the cases from Tennessee and Ohio concern the recognition of gay marriages performed in other states.
For some, it seems like the recent momentum for marriage equality all but assures the victory of gay marriage proponents. As Freedom to Marry points out, 29 cases concerning marriage have been decided since December 2013, and all of them have been in favor of marriage equality. Additionally, there are around 75 pending cases presently in the U.S. court system.
However, some commentators point out that the court's decisions could prove to be a major turning point or obstacle to supporters of marriage equality. Two of the judges on the three-judge panel have a markedly conservative perspective and record. For gay marriage opponents, these cases appear to be a real opportunity to slow the other side's momentum or even reclaim the course of the national debate.
Ironically, however, a decision against marriage equality could stand to accelerate or improve the momentum of marriage equality. Because the major issue at hand is the patchwork nature of marriage laws across the United States in the wake of the Windsor decision, disparate rulings within the court system could compel the Supreme Court to address the issue sooner rather than later.
A ruling against marriage equality at this appellate level is not something that marriage equality supporters should cheer for, but the prospect of establishing a national ruling on top of the past few year's surprising momentum is. Even following a defeat at this level based on politicized lines, supporters should take heart in the overwhelming legal thrust of their arguments. As Judge Heyburn wrote in his decision in Bourke v. Beshear, "These arguments are not those of serious people."