On Thursday, the Sixth Circuit Court of Appeals became the first federal appeals court to rule against marriage equality, upholding laws in Kentucky, Michigan, Ohio, and Tennessee that banned same-sex marriage or prohibited the recognition of same-sex couples legally married in other jurisdictions.
The 2-1 decision, which was authored by Circuit Judge Jeffrey Sutton, means that for now, in those states, same-sex couples cannot marry, nor will those states recognize same-sex marriages performed elsewhere. Judge Sutton, a President George W. Bush appointee and former law clerk to Supreme Court Justice Antonin Scalia, is a conservative judge who developed a reputation for judicial independence after upholding the the Affordable Care Act in 2011.
Judge Sutton opened the opinion by conceding that marriage equality is inevitable. “This is a case about change—and how best to handle it under the United States Constitution,” he wrote. “From the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen.”
But rather than step aside and let this process work itself out, Sutton insisted that a legitimate dispute lingers as to whether or not that right to marry can be restricted by a majority of voters.
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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. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.
Judge Sutton didn’t just undercut his claim about the inevitability of marriage equality by halting its advance in four states. He also misstated the nature of the democratic process here with his suggestion that same-sex marriage bans are not a reflection of the tyranny of the majority, but instead represent the coming together of “gay and straight alike” to “become the heroes of their own stories” who use the democratic process to “resolve a new social issue in a fair-minded way.” In other words, Sutton seemed to put the onus on those seeking same-sex marriage to persuade those unaffected by the ban to vote in the former’s favor—a strategy that does not often work out in favor of the oppressed.
For her part, Circuit Judge Martha Daughtrey called out the majority’s intellectually dishonest narrative of the court’s role in fostering social change and the idea that statewide same-sex marriage bans represented “gay and straight alike” working out a “new social issue,” noting the majority opinion treats “both the issues and the litigants here as mere abstractions” rather than as actual human beings with rights at stake.
“The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy,” Daughtrey wrote. “But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the 14th Amendment.”
Thursday’s decision makes the Sixth Circuit the first appeals court to uphold marriage equality restrictions since the Supreme Court in 2013 struck down part of the federal Defense of Marriage Act in United States v. Windsor. So far, federal appeals courts in the Fourth, Seventh, Ninth, and Tenth Circuits have all ruled in support of same-sex marriage rights.
The Sixth Circuit’s decision also makes it more likely that the U.S. Supreme Court will take up the question of whether or not the 14th Amendment prohibits states from banning same-sex marriages or failing to recognize legal same-sex marriages from other states. Earlier this year, the Roberts Court declined to intervene in the fight for marriage equality. At that time, there were no splits in the federal circuit courts of appeals. Now such a split exists, conceivably requiring Supreme Court intervention.
Attorneys representing the various parties challenging the bans have the option of asking the entire panel of Sixth Circuit judges to reconsider the decision, or they can appeal Thursday’s panel ruling directly to the Roberts Court. According to the Associated Press, an attorney for the Detroit-area nurses who challenged Michigan’s ban on marriage equality said her clients plan to do the latter.