And it’s not even the Fifth Circuit Court of Appeals that might bring a halt, however temporary, to the march of progress.
Marriage equality has had a very good run in the federal courts ever since the Supreme Court declared the anti-gay Defense of Marriage Act unconstitutional in 2013. Every single federal court to consider the question has sided with marriage equality, although two federal appellate judges have dissented from this consensus view in the United States Courts of Appeals for the Fourth and the Tenth Circuits.
Nevertheless, equality is likely to face more skeptical judges as more of these cases advance to the court of appeals level. As ThinkProgress warned last June, “appointments to federal circuit courts have historically been much more politically charged than appointments to the lower-ranking district courts, so litigants are far more likely to encounter a judge who was selected for their loyalty to a particular ideology.” We also predicted that the Sixth Circuit, with a strong Republican majority and a history of partisan acrimony, was especially likely to treat a marriage equality case with skepticism.
Next Wednesday, a three-judge panel of the Sixth Circuit will convene in Cincinnati to hear several marriage equality cases arising out of Michigan, Ohio, Kentucky and Tennessee — and the GOP-dominated panel that will hear these cases is unlikely to bring joy into the hearts of equality’s supporters.
If the Sixth Circuit really wants to accept a bunch of ridiculous and widely discredited arguments on behalf of discrimination, there’s not much anyone can do to stop them. History will remember them unkindly, but I suppose we’ll all be dead by then, so YOLO and all that. As the story notes, there’s a chance it might not go down this way, so let’s not get ahead of ourselves. In the end, even a bad decision just means that the Supreme Court will have to take it up sooner rather than later.