Just the other day I was joking on Facebook that I welcome our new judicial overlords. I said it jokingly because it seems like many courts have made decisions based on half-baked ideas lately.
But today, the 6th Circuit of Appeals bucked the trend of governing from the bench. USA Today reports,
The same-sex marriage movement lost its first major case in a federal appeals court Thursday after a lengthy string of victories, creating a split among the nation’s circuit courts that virtually guarantees Supreme Court review.
The 2-1 ruling from the U.S. Court of Appeals for the 6th Circuit reversed district court rulings that had struck down gay marriage bans in Michigan, Ohio, Kentucky and Tennessee.
More important, it gives Supreme Court justices an appellate ruling that runs counter to four others from the 4th, 7th, 9th and 10th circuits. Those rulings struck down same-sex marriage bans in Virginia, Indiana, Wisconsin, Oklahoma, Utah, Idaho and Nevada, leading to similar action in neighboring states.
Circuit Judge Jeffrey Sutton, one of the Republican Party’s most esteemed legal thinkers and writers, issued the 42-page decision precisely three months after hearing oral arguments in the cases, with fellow GOP nominee Deborah Cook concurring. He delivered a rare defeat for proponents of same-sex marriage, who had won nearly all the cases decided from Florida to Alaska since the Supreme Court ruled against the federal Defense of Marriage Act in June 2013.
Reading the majority opinion of Justice Sutton, I was struck by several things. First off, there are about a thousand law firms involved in these cases. I didn’t actually count the number of firms involved, but there are a lot of folks jumping on the gravy train here. That shouldn’t be surprising once you consider the weight of the issue being put on the scale.
Secondly, Justice Sutton is a delightful writer who is able to hone down all of the arguments that have been raised thus far in these cases, and present them so that their import, and the cases from which precedents from prior decisions have been derived, are made clear to us. With humility he writes,
While explaining the cases in the four states (Michigan, Ohio, Kentucky, and Tennessee) brought before the court, Sutton also provides in-depth history of how this whole movement began. Hint: it wasn’t by the Massachussets judiciary in 2004.
Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us—just two of us in truth—to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee.
In the early 1970s, a Methodist minister married Richard Baker and James McConnell in Minnesota. Afterwards, they sought a marriage license from the State. When the clerk of the state court denied the request, the couple filed a lawsuit claiming that the denial of their request violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971). The Minnesota Supreme Court rejected both claims. As for the due process claim, the state court reasoned: “The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis. . . . This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause . . . is not a charter for restructuring it by judicial legislation.” Id. As for the equal protection claim, the court reasoned: “[T]he state’s classification of persons authorized to marry” does not create an “irrational or invidious discrimination. . . . [T]hat the state does not impose upon heterosexual married couples a condition that they have a proved capacity or declared willingness to procreate . . . [creates only a] theoretically imperfect [classification] . . . [and] ‘abstract symmetry’ is not demanded by the Fourteenth Amendment.” Id. at 187. The Supreme Court’s decision four years earlier in Loving v. Virginia, 388 U.S. 1 (1967), which invalidated Virginia’s ban on interracial marriages, did not change this conclusion. “In commonsense and in a constitutional sense,” the state court explained, “there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.”
But that was then; this is now. And now, claimants insist, must account for United States v. Windsor, 133 S. Ct. 2675 (2013), which invalidated the Defense of Marriage Act of 1996, a law that refused for purposes of federal statutory benefits to respect gay marriages authorized by state law. Yet Windsor does not answer today’s question. The decision never mentions Baker, much less overrules it. And the outcomes of the cases do not clash. Windsor invalidated a federal law that refused to respect state laws permitting gay marriage, while Baker upheld the right of the people of a State to define marriage as they see it. To respect one decision does not slight the other. Nor does Windsor’s reasoning clash with Baker. Windsor hinges on the Defense of Marriage Act’s unprecedented intrusion into the States’ authority over domestic
You can read the entire decision here.
Looks like SCOTUS will have to tackle the disconnect between Baker and Windsor sooner, rather than later.