Bucking the trend of every other federal appeals court in the country thus far, the Sixth Circuit Court of Appeals has issued a much-anticipated decision upholding gay marriage bans in the four states in its jurisdiction, Kentucky, Michigan, Ohio, and Tennessee. The 2-1 decision written by Judge Jeffrey S. Sutton a George W. Bush appointee, as the New York Times is quick to point out runs counter to other recent decisions by the 4th, 7th, 9th, and 10th Circuits. And as the Supreme Court indicated in its October decision not to hear any of the appeals in gay marriage cases, they have been waiting to weigh in on the legality of gay marriage pending a disagreement between appeals courts, of which there had been none so far.
This is the first appeals court decision to try to quash same sex marriage rights since the landmark 2013 Supreme Court decision in US vs. Windsor which struck down the Defense of Marriage Act as unconstitutional.
"The decision is both wrong and unfair," says ACLU attorney Elizabeth Gill. "It's also an outlier among the 50 other court decisions that recognized the unconstitutionality of denying same sex couples and their families the rights and respect all other families receive." She adds that it also "highlights the need for the Supreme Court to rule definitively on the question of marriage for same-sex couples."
In his decision, using a page from Scalia's strict-Constitutionalist playbook, Judge Sutton writes, "The right to marry in general, and the right to gay marriage in particular, nowhere appear in the Constitution. That route for recognizing a fundamental right to same-sex marriage does not exist."
This paves the way for another potentially dramatic year in the same-sex marriage fight in 2015, though an appeal for an en banc ruling by the entire 11-judge panel of the Sixth Circuit is likely the most immediate step. Should the full panel of judges decide to strike down the same-sex marriage bans, the Supreme Court will get to keep their silence on the topic.
Sutton adds, in his decision, that it is not in the purview of federal judges to be interpreting what the Constitution says on the topic of marriage.
The theory of the living constitution rests on the premise that every generation has the right to govern itself. If that premise prevents judges from insisting on principles that society has moved past, so too should it prevent judges from anticipating principles that society has yet to embrace. It follows that States must enjoy some latitude in matters of timing, for reasonable people can disagree about just when public norms have evolved enough to require a democratic response. Today’s case captures the point. Not long ago American society took for granted the rough correlation between marriage and creation of new life, a vision under which limiting marriage to opposite-sex couples seemed natural. Not long from now, if current trends continue, American society may define marriage in terms of affirming mutual love, a vision under which the failure to add loving gay couples seems unfair. Today’s society has begun to move past the first picture of marriage, but it has not yet developed a consensus on the second. If, before a new consensus has emerged on a social issue, federal judges may decide when the time is ripe to recognize a new constitutional right, surely the people should receive some deference in deciding when the time is ripe to move from one picture of marriage to another. So far, not a single United States Supreme Court Justice in American history has written an opinion maintaining that the traditional definition of marriage violates the Fourteenth Amendment.
