You don’t have to be a legal scholar to understand that the ruling by a three-judge appellate court panel in Cincinnati this week makes it much more likely that the U.S. Supreme Court will rule definitively on the constitutionality of states regulating same-sex marriage.

On Thursday, the 6th U.S. Circuit Court of Appeals panel upheld gay-marriage bans in Michigan and Kentucky, as well as narrower restrictions on same-sex couples in Ohio and Tennessee. Of five appellate decisions across the country on gay marriage so far, this was the first that upheld the bans.

Ohio’s own ban on gay marriage, which voters approved by a wide margin in 2004, was not at issue in the ruling this week, but it could be affected if the Supreme Court accepts the appeal that has been promised.

While polls in Ohio and elsewhere show growing acceptance of same-sex marriage, the Cincinnati court ruling makes clear the contentious, related questions that remain unanswered. Is marriage a constitutional right demanding a federal solution, or is it an institution that each state is free to define? Who ultimately decides, the courts or legislators and voters?

While same-sex marriage is a thoroughly modern issue, the legal and constitutional divides that it has created — painful divides because there seems to be so little middle ground — go back to the founding of the country. Maybe both sides can take some comfort in that fact as they wait for resolution.

 

The (Canton) Repository