Pretty big news out of the 6th Circuit yesterday. The Court of Appeals, in a 2-1 decision, reversed the lower courts’ determination that the same-sex marriage bans in Michigan, Ohio, Kentucky, and Tennessee were unconstitutional. It’s the first adverse decision against marriage equality in a circuit court, and the decision will likely lead to a showdown in the Supreme Court.
As always, I have my takeaways:
- Who Decides? In the first paragraph of his opinion, Judge Jeffery Sutton wrote that the case was about change and “how best to handle it under the Constitution.“ He seems to feel that marriage equality is coming, but he doesn’t think the courts should be involved in creating the change. Rather state legislatures, through the democratic process, should make the decision.
- Rational Basis of Review: Sutton uses that rational basis standard of review when analyzing the constitutionality of the marriage bans. In other words, he looked to see whether the laws “rationally advance a legitimate government policy.” He claims the legitimate rationale for the law comes form creating “an incentive for two people who procreate together to stay together for the purposes of rearing offspring.” Sutton admits that this is not the only reason to marry, but it provides a reason for the law to exist.
- “A largely irrelevant discourse on democracy and federalism:” In her dissent, Judge Martha Craig Daughtrey didn’t hold back in her criticism of her colleagues’ opinion. She says the majority set up a “false premise” and “leads us through a largely irrelevant discourse on democracy and federalism.” She then picks apart each state case and how the opinions support the conclusion that these marriage bans have no rational basis in the law.
I have to admit that I’m more disappointed in the 6th Circuit’s opinion than I probably should be. It seems absurd to me that a Judge could say, “I shouldn’t decide on this legal issue.” I was also hoping that we could avoid having to go to the Supreme Court and just have the circuit court’s agree in their analysis.
But I also understand why some marriage-equality advocates are excited that this decision will finally force the Supreme Court to settle the issue. So maybe we should thank Sutton for his opposing view. This route may be the quickest way to marriage equality for all.
You can read the entire opinion here. The decision comes just a day after a state judge in Missouri ruled that the state’s ban on same-sex marriages was unconstitutional. Many more decisions are still on their way. We’ll have to see what kind of affect, if any, the 6th Circuit’s decision has on other courts. Stay tuned.