Marriage equality has been on a roll in recent history, with legalization and legal victories in (at the time of this writing) 32 states. But the streak has hit a roadblock, by the name of the Sixth Circuit court, who delivered a 2-1 vote upholding the same-sex marriage ban in Ohio, Michigan, Kentucky, and Tennessee.
The ruling flies in the face of the momentum built up by the same-sex marriage movement, not just around the country but in the states themselves. District courts in each of these four states had claimed that marriage bans like this were unconstitutional but the Sixth Circuit’s decision reversed all of that–a direct conflict of decisions made in the Fourth, Seventh, Ninth, and Tenth Circuit courts. Only last month the Supreme Court opted to not hear arguments, as it seemed like there had been consensus on the issue at all the lower levels. As Steve Delchin writes for the Sixth Circuit Appellate Blog:
In doing so, the Sixth Circuit has broken rank with the overwhelming majority of federal courts that have struck down same-sex marriage bans as unconstitutional.
Judge Sutton’s majority opinion is a very philosophical one that explores the role of the judiciary in a democracy. Much of it reflects Judge Sutton’s reasoning that bans on same-sex marriage pass muster under rational basis review and that the battle over gay marriage—one of the most highly contentious cultural issues of our time—should be decided by the people, not by a judiciary acting as some sort of superlegislature.
While Delchin is right, Sutton certainly makes an elegant defense of judicial restraint, his writing seems wholly out of touch with the country he writes for. He observes that the times they are, indeed, a-changin’, with 19 states and the District of Columbia have expanded their definition to include gay couples since 2003. He writes:
That would not have seemed likely as recently as a dozen years ago. For better, for worse, or for more of the same, marriage has long been a social institution defined by relationships between men and women. So long defined, the tradition is measured in millennia, not centuries or decades. So widely shared, the tradition until recently had been adopted by all governments and major religions of the world.
Ok, Sutton, marriage has long and often been defined as man and woman. But there’s also plenty of evidence of religions and cultures who have tolerated if not accepted marriage between same-sex couples. But this argument isn’t anything new; it’s been debunked many times, notably by Judge Richard Posner of the Seventh Circuit who released an opinion nine days after hearing arguments in a same-sex marriage ban case earlier this year:
Tradition per se has no positive or negative significance. There are good traditions [and] bad traditions… bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that from a public-policy standpoint are neither good nor bad (such as trick-or-treating on Halloween). Tradition per se therefore cannot be a lawful ground for discrimination – regardless of the age of tradition…. But these traditions, while to the fastidious they may seem silly, are at least harmless. If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause.
More than just a stinging rebuttal to Sutton’s, Posner’s argument show how easily it is to pick apart everything but the constitutionality of marriage equality. Sutton’s arguments waffle between noting that it’s the majority’s opinion that this decision be left to the voters to raising straw man arguments about why “traditional” marriage is important, even including a lengthy section where he talks about what the “absence of rules” would mean for “the natural effects of male-female intercourse: children,” writing:
That we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.
Once one accepts a need to establish such ground rules, and most especially a need to create stable family units for the planned and unplanned creation of children, one can well appreciate why the citizenry would think that a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them.
Sutton’s stance seems decidedly independent of the reality we’re in. His equation of marriage as a means to rear children or get tax cuts not only reeks of privilege, but also ignores that more and more people today are opting to forgo marriage or children as part of their life plan. As Posner argues, to falsely equate the two is to ignore that “marriage confers respectability on a sexual relationship; to exclude a couple from marriage is thus to deny it a coveted status.”
While there’s plenty of room to critique Sutton’s philosophical arguments—the dissenting opinion begins by stating “the author of the majority opinion has drafted what would make an engrossing TED Talk, or, possibly, an introductory lecture in Political Philosophy”—the issue seemingly at the crux of Sutton’s opinion was the belief that this was an issue for the voters to decide. Judge Martha Craig Daughtrey, who wrote the aforementioned dissenting opinion, attacked this premise fervently:
Moreover, as it turns out, legalization of same-sex marriage in the “nineteen states and the District of Columbia” mentioned by the majority was not uniformly the result of popular vote or legislative enactment. Nine states now permit same-sex marriage because of judicial decisions, both state and federal…Despite the majority’s insistence that, as life-tenured judges, we should step aside and let the voters determine the future of the state constitutional provisions at issue here, those nine federal and state courts have seen no acceptable reason to do so.
That’s the key issue here, and one that may prove quite paradoxical, as Aaron Weems alludes to on the Pennsylvania Family Law Blog:
The Sixth Circuit’s break with the Fourth, Seventh, Ninth, and Tenth circuits decisions to strike down same-sex marriage bans may result in the Supreme Court taking up the case soon. The Supreme Court declined to take up a same-sex marriage case in its most recent session on the basis that there were no inconsistencies among the four circuits who have considered the issue. The success of same-sex marriage proponents was actually preventing what some might hope would be the coup de grace of same-sex marriage bans.
Which is essentially saying: after spending pages upon pages laying the groundwork for why such decisions on same-sex marriage should be left to the voters, Judge Sutton very well may inadvertently have teed up this nation’s highest court to make a long-awaited landmark ruling on same-sex marriage—one that could legalize it throughout the country. Up until now SCOTUS has remained silent on the issue, clearly feeling no urgency to get involved with the case. But now that the Sixth Circuit has broken stride with fellow federal courts, Sutton’s plea for judicial conservatism may just be ironically met with the Supreme Court finally stepping in.