On Thursday, a three-judge panel of the Sixth U.S. Circuit Court of Appeals upheld bans on same-sex marriage in Michigan, Ohio, Kentucky and Tennessee – ruling that the bans do not violate the U.S. Constitution’s Equal Protection Clause.

That’s the first time a circuit court has ruled that way on a same-sex marriage case; up until Thursday, every other circuit court – including the Fourth, which covers North Carolina – had struck down gay marriage bans on equal protection grounds.

The Sixth Circuit’s ruling creates a division among judges, which means the U.S. Supreme Court is virtually certain to weigh in at its next opportunity, possibly within a year. (The Supreme Court elected not to hear arguments on the issue earlier this year, but only because there wasn’t a split in the circuits at the time.)

But what does the Sixth Circuit’s ruling mean for North Carolina – where same-sex couples have been filing for, and receiving, marriage licenses for weeks?

Chapel Hill Mayor Mark Kleinschmidt served as an attorney on the case that brought down the same-sex marriage ban here in North Carolina. He’s critical of the ruling – which puts the Sixth Circuit at odds with every other circuit court that’s weighed in – and he says he’s confident that the Supreme Court will overturn it. The Supreme Court currently includes a majority bloc of five justices – Kagan, Sotomayor, Breyer, Ginsburg, and Kennedy – who have consistently ruled in favor of LGBT rights since the mid-1990s in cases like Romer v. Evans, Lawrence v. Texas, and U.S. v. Windsor. (Kagan and Sotomayor, of course, joined the Court more recently.) Supreme Court observers usually identify Anthony Kennedy as a “swing” justice, even a conservative, but he’s actually authored many of the Court’s most pro-LGBT opinions. (And Kleinschmidt says there may be one more step before the Supreme Court: Thursday’s ruling was handed down by a three-judge panel of the Sixth Circuit Court, not by the full court itself, so petitioners may first ask for an “en banc” review by the full court before appealing to the Supremes.)

But the ultimate outcome is still uncertain, of course – and it may become even more uncertain should one of those justices retire in the near future. Compounding the matter is the fact that gay and lesbian couples are getting married in states across the country – including North Carolina – precisely because other judges have struck down their states’ same-sex marriage bans as violations of the Constitution’s Equal Protection Clause.

If the Supreme Court should actually rule that the bans do not violate the Constitution, what would that mean for North Carolina? Virginia? Idaho? Kleinschmidt says such a ruling is highly unlikely – but should it come, it would create a “constitutional crisis.” (It would also leave thousands of couples in legal limbo.)

Mark Kleinschmidt spoke with WCHL’s Aaron Keck.

 

Meanwhile in North Carolina, Thom Tillis and Phil Berger have followed through on their pledge to appeal District Court Judge Max Cogburn’s ruling striking down the state’s same-sex marriage ban. They filed that appeal on Thursday, shortly after the Sixth Circuit handed down its ruling. (That appeal, however, goes to the Fourth U.S. Circuit Court of Appeals, which has already ruled that same-sex marriage bans are unconstitutional.)