The New York Times reports:
In three hours of back-and-forth questioning, it appeared that neither side could take victory for granted in the United States Court of Appeals for the Sixth Circuit, where the cases from Kentucky, Michigan, Ohio and Tennessee were heard by two judges appointed by President George W. Bush and one by President Bill Clinton. Judge Jeffrey S. Sutton, one of the Bush appointees and a likely swing vote among the three, repeatedly asked why gay rights advocates wanted to use the courts to hasten an outcome they were gradually winning through elections and changes in attitude. “I’d have thought the best way to get respect and dignity is through the democratic process,” he said, expressing a view that, in practice, would most likely deliver a victory to the states seeking to keep bans on same-sex marriage.
As they debated the cases, all three judges and several lawyers referred repeatedly to the transformed legal landscape of the last year, in which more than two dozen lower courts and two appeals courts have ruled that gay couples have a right to marry, and to the expectation that the Supreme Court would soon hear the issue. Judge Sutton did suggest that the arguments offered against marriage equality were weak, saying that marriage bans would be hard to defend if subjected to the intense “heightened scrutiny” that courts apply when fundamental civil rights are at stake. But he also wondered whether legal precedents in the Sixth Circuit and the Supreme Court should prevent the panel from declaring same-sex marriage to be a fundamental right deserving court intervention.
UPDATE: The Washington Post notes that losing at the Sixth Circuit would “almost surely” force SCOTUS to accept at least one of the marriage cases before it.
A loss might not be the worst thing for proponents of same-sex marriage, who are eager to get the issue to the high court. Even in those states where courts have struck down bans, Supreme Court justices have blocked marriages until the appeals courts or the high court itself decides the issue. Although the justices in 2013 ruled 5 to 4 in U.S. v. Windsor that the federal government could not refuse to recognize same-sex marriages performed in those states where it is legal, the court did not decide whether states, the traditional guardian of marriage laws, may ban such unions. Although two appeals courts have ruled that bans in Oklahoma, Utah and Virginia violate the federal Constitution, the Supreme Court is under no obligation to review those decisions. But if there is a split among the appeals courts on whether marriage is a fundamental right that must be offered to all or, alternatively, that states are free to restrict it to heterosexual couples, that would almost surely require Supreme Court intervention sooner rather than later.