As expected the 6th Circuit Court of Appeals reversed lower federal court rulings legalizing gay marriage in Michigan, Ohio, Tennessee and Kentucky on Thursday.
Judge Jeffrey S. Sutton, who wrote the 6th Circuit Court of Appeals’ majority opinion, said the court does not have “a sweeping grant of authority” that allows it to determine “whether gay marriage is a good idea” for the residents of those states. This is in contrast to how other U.S. circuit courts that have interpreted the ruling in United States v. Windsor, which declared Section 3 of the DOMA unconstitutional under the Due Process Clause of the Fifth Amendment.
Sutton questioned, “Is this a matter that the National Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?”
The AP reports on the ruling:
It followed more than 20 court victories for supporters of same-sex marriage since the U.S. Supreme Court struck down part of the federal Defense of Marriage Act last year. A federal judge in Louisiana recently upheld that state’s ban, but four U.S. appeals courts ruled against state bans.
The issue appears likely to return to the Supreme Court so the nation’s highest court can settle whether states can ban gay marriage or that gay and lesbian couples have a fundamental right to marry under the U.S. Constitution. Thirty-two states recently asked the Supreme Court to settle the issue once and for all.
Sutton did acknowledge that the legalization of gay marriage is an issue that’s not going away. In this, Sutron is correct. The Supreme Court will almost certainly be forced to take up the case of gay marriage now that there is a conflict in the lower courts. With all previous circuit courts agreeing on the unconstitutionality of gay marriage bans, the Supreme Court had no reason to take on the issue. However, now that the Sixth Circuit’s ruling differs, there is a reason for the Supreme Court to take on the issue. “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,” the opinion said.
Senior Judge Martha Craig Daughtrey, writi the dissent, chastised her colleague for writing “what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy,” arguing that “the majority sets up a false premise—that the question before us is ‘who should decide?’—and leads us through a largely irrelevant discourse on democracy and federalism.”
“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,” Daughtrey wrote.
Sutton and the Sixth Circuit are merely delaying the inevitable. Of course, they may have also taken it as a sign from the Republican victories in the midterm election that Senators like Ted Cruz will likely try to pass a Defense of Marriage Amendment to answer the “question” once and for all. It would be one of the greatest travesties in American history if they do because it will be the first amendment designed to discriminate against a group of Americans instead of expanding freedoms.