ROBERT SIEGEL, HOST:
Four states that banned gay marriage may do so under the Constitution. That is the ruling today by the Federal Circuit Court of Appeals for the Sixth Circuit, it sits in Cincinnati. The court reached a conclusion that is opposite from those announced earlier this year by four other federal courts of appeal.
NPR legal affairs correspondent Nina Totenberg is in the studio to talk more about this and Nina first, how did the court in Ohio explain its decision?
NINA TOTENBERG, BYLINE: Well, first of all it said that it's bound by what the Supreme Court has done in the past. In the early 1970s the court said there was no federal question in a challenge - in a state law - that banned gay marriage. It said that in a one sentence order and the court here says that it's still bound by that, even though just in a matter of weeks ago the court left in place rulings by three other federal appeals courts that had struck down gay marriage. And it said well, that's not good enough, we still are stuck with that earlier decision. But then the court went on to basically tackle the issue and say that this is a question of who decides and that in these cases, what we're left with is this, that the states had a rational basis - a reason - you might not like the reason, but it was a reasonable reason, so to speak. And that is that by creating a status - marriage - and subsidizing it with tax privileges and deductions, the states created an incentive for two people who procreated together to stay together for purposes of rearing offspring. That does not convict the states of irrationality; only of awareness of the biological realities of couples of the same sex and that they do not - who do not have children in the same way as opposite sex couples.
SIEGEL: How do you understand the circuit court in Ohio seeing this so differently than the other appeals courts have seen it?
TOTENBERG: Well, you know, it's different judges.
SIEGEL: Is it a very conservative court by reputation?
TOTENBERG: Well, no it's an evenly split court. This panel had two reasonably conservative judges, but good judges. Judge Jeffrey Sutton who wrote this opinion is a conservative Republican and so is the other member of the majority here and it's a Democratic appointee otherwise, but that doesn't tell us a whole lot.
SIEGEL: Bottom line - when you have conflicting courts of appeal coming up with different answers to this question of same-sex marriage, it has to go to the Supreme Court?
TOTENBERG: It will eventually. This could go first for a full en banc decision and if it doesn't change things then we'll have a conflict in the Supreme Court eventually. Probably next year we'll have to decide.
SIEGEL: En banc meaning all the judges of the Sixth Circuit.
TOTENBERG: All the judges on that court, not just three.
SIEGEL: OK Nina, thank you.
That's NPR legal affairs correspondent Nina Totenberg. Transcript provided by NPR, Copyright NPR.
