A panel of the 6th U.S. Circuit Court of Appeals overruled the previous rulings by judges in Kentucky and three other states on Thursday, upholding each state’s ban on same sex marriage. Most observers expect the plaintiffs to now appeal to the Supreme Court, where the constitutionality of same sex marriage bans will be decided.

In the 2-1 ruling, Judge Jeffrey Sutton wrote in his majority opinion that the court may not overturn the will of the voters who approved ban of such marriages.

“A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of states,” wrote Sutton.

In her lone dissent, Judge Martha Craig Daughtrey ridiculed the majority opinion for not factoring in the harm caused to couples and families due to the discriminatory laws.

“If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams,” wrote Daughtrey.

The defendant in the Kentucky cases, Gov. Steve Beshear, said in a statement that the Supreme Court will now settle the matter once and for all.

“Today we took another step toward what Kentucky and this nation need: A United States Supreme Court ruling that establishes clear direction for states across the country on this divisive issue,” said Beshear. “I said all along that we needed clarity and certainty in Kentucky, and a lower court’s ruling was not sufficient. I expect the plaintiffs to appeal this ruling quickly, and I urge the Supreme Court to take up this issue.”

Joe Dunman, one of the attorneys for the Kentucky plaintiffs, told Insider Louisville shortly after the ruling that Judge Sutton’s points on the state having the right to channel procreation into state-sanctioned institutions “are all familiar arguments we’ve heard and many of the states argued. But they’re arguments that have convinced no federal circuit court whatsoever so far. He and Judge Cook are the only two to be convinced by these arguments.”

Dunman says the plaintiffs have the option of going back to the 6th and asking the entire court to rule, but the most likely outcome is for the case to head to the Supreme Court.

“We’re going to discuss this with the other plaintiffs in the other states. All of our clients are very disappointed and they fully intend to fight all the way to the Supreme Court, if necessary,” said Dunman. “I think we have not formally decided yet, but probably the best bet is to go straight to the Supreme Court and have them actually rule on it. And they’ve already indicated a willingness to do so. Justice Ginsburg recently said that they’re waiting on the 6th Circuit, and that they’d take up the case if there was an actual circuit split, which there now certainly is.”

Dunman adds that heading to the Supreme Court would at least be a three month process.

The Fairness Campaign held a rally of 100 supporters in downtown Louisville today to protest the ruling, which included most of the plaintiffs and attorneys in the Kentucky cases.

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Fairness Campaign director Chris Hartmann rallies those protesting the court ruling

Fairness campaign director Chris Hartmann criticized the “incredibly unfair, backwards, archaic decision” of the 6th Circuit Court of Appeals, adding that this ruling will be one of many that the Supreme Court has overturned.

“We also know that the sixth circuit is the worst in the nation in terms of being overturned at the Supreme Court level,” said Hartmann. “More than 80 percent of the cases that the 6th Circuit decides are overturned at the Supreme Court of the United States of America, and that is exactly what we intend to see happen with this decision yesterday.”

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Plaintiffs Michael De Leon and Greg Bourke

Greg Bourke and Michael De Leon, the married couple who filed the first Kentucky lawsuit that launched the case forward, said that Thursday’s decision was disappointing, but they know justice is coming soon.

“We know where we’re going: We’re going to the Supreme Court, and we’re going to win there,” said Bourke. “There’s no question about it.”

Dressed in black to mourn the court’s decision, fellow plaintiffs Tammy Boyd and Kim Franklin of Louisville told the crowd that they are ready to change their outfit for a rally in the near future.

“The next time you see us our black will be changed over to rainbow colors in celebration,” said Boyd.

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Joe Sonka
Joe Sonka is a staff writer at Insider Louisville focusing on government, politics, education and public safety. He is a former news editor and staff writer at LEO Weekly and has also freelanced for The Nation and ThinkProgress. He has won first place awards from the Louisville Metro chapter of the Society of Professional Journalists in the categories of Health Reporting, Enterprise Reporting, Government/Politics, Minority/Women’s Affairs Reporting, Continuing Coverage and Best Blog. Email him at [email protected]