And just like that, same-sex marriage is very likely headed back to the Supreme Court’s docket.
On Thursday afternoon, a three-judge panel of the U.S. Circuit Court of Appeals for the Sixth Circuit, which hears cases out of Michigan, Ohio, Kentucky and Tennessee, voted 2-1 to reverse rulings in all four states that had struck down bans on same-sex marriage. In doing so, the Sixth Circuit became the first federal appeals court to uphold a ban; four others have struck them down.
That creates what is known as a circuit split: when different federal appeals courts rule differently on the same legal question. Justice Ruth Bader Ginsburg recently reminded everyone that, without a split, there was no reason for the court to “rush in” and decide the issue. Accordingly, the justices last month declined seven petitions on the issue. Now the odds are dramatically higher that the Court will step back in and rule definitively on same-sex marriage, very possibly for this term.
The Sixth Circuit opinion was written by Judge Jeffrey Sutton, who was appointed by President George W. Bush in 2003.
The Sixth Circuit opinion was written by Judge Jeffrey Sutton, who was appointed by President George W. Bush in 2003.
“This case is about change,” Judge Sutton began, “and how best to handle it under the United States Constitution.” As the judge and his colleague, Judge Deborah Cook, see it, legal same-sex marriage nationwide is inevitable, but it is for the voters, and not the courts, to push it over the goal line.
If the Supreme Court undercuts this democratic process, Judge Sutton wrote, “we will never know what might have been.” After all, couldn’t the “traditional arbiters of change — the people … meet today’s challenge admirably and settle the issue in a productive way?”
“When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers.”
Really? Who cares about the identity of the “heroes” of “change events”? Can most Americans name the lawyers or judges who decided Brown v. Board of Education?
In a piercing dissent, Judge Martha Craig Daughtrey wrote that the majority “treats both the issues and the litigants here as mere abstractions,” and proceeds on a false premise: “that the question before us is ‘who should decide?’”
“In point of fact,” Judge Daughtrey wrote, “the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it.”
As the judge pointed out, the “democratic” wave of states granting same-sex marriage rights was as much the work of judges as of voters. And that is an essential point, she said.
“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.”
Get ready for another dramatic end of term in June 2015.
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