The lesbian, gay, bisexual, and transgender (LGBT) community faced one of their first major hurdles Thursday, November 6, when a federal appeals court upheld laws banning same-sex marriage in four states: Kentucky, Michigan, Ohio, and Tennessee.
A Stay on Same-Sex Marriage Bans
The US Court of Appeals for the 6th Circuit issued a 2-1 ruling reversing district court rulings that struck down gay marriage bans in the four states. The ruling creates a split among the country’s circuit courts, as has upheld gay marriage laws.
More importantly, the ruling virtually guarantees a review by the Supreme Court. The striking down of the same-sex marriage laws in the 6th Circuit runs counter to four others, namely from the 4th, 7th, 9th, and 10th Circuits. The ruling from the four circuits struck down same-sex marriage bans in Idaho, Indiana, Oklahoma, Utah, Virginia, and Wisconsin, prompting similar action in neighboring states.
A U.S. Supreme justice, meanwhile, temporarily blocked gay marriage in Kansas on Monday, November 10, a day before it was scheduled to take effect.
Democracy, Not Judiciary
6th Circuit Judge Jeffrey Sutton released the 42-page decision exactly three months after hearing oral arguments from proponents and opponents of same-sex marriage laws. Sutton is one of the Republican Party’s most esteemed legal thinkers and has been rumored to be a frontrunner as a potential Supreme Court nominee under a Republican president. Fellow judge and GOP nominee Deborah Cook concurred.
With the ruling, Sutton delivered a rare blow for supporters of same-sex marriage, who had won nearly all cases decided from Florida to Alaska ever since the Supreme Court ruled against the Defense of Marriage Act (DOMA) in June 2013.
Sutton said the hands of the Court of Appeals judges are tied due to a one-sentence Supreme Court ruling from 1972, which “upheld the right of the people of a state to define marriage as they see it.”
The striking down of DOMA last year required the federal government to recognize same-sex marriages across the country. It, however, does not negate the 1972 Supreme Court ruling as it applies to states where gay marriage is not legal, argued Sutton.
“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,” argued Sutton. “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.”
Sutton adds that states “got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse.”
The six cases presented to the Appellate Court for the 6th Circuit involved not just a decision on whether gays and lesbians should be allowed to marry, but also whether marriages performed in other states should be recognized, whether same-sex couples should be allowed to adopt children, and whether their names should be included on their partners’ death certificates.
Senior Judge Martha Craig Daughtrey, a Democratic appointee, delivered a strongly worded 22-page dissent disputing Sutton’s argument that judges should not decide the issue. She said Sutton’s opinion “would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy.” But federal judges are required to protect the constitutional rights of the minority, 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,” said Daughtrey.