Gay Marriage Recognition Bans Upheld in Four States. Are We SCOTUS-Bound Now?
As some court watchers (including our own Damon Root) predicted, the U.S. Court of Appeals for the 6th Circuit has put the brakes on the mass march of same-sex couples to their local city clerk's office to pick up marriage licenses. By a ruling of 2-1, the court has reversed lower court rulings and upheld gay marriage recognition bans in Michigan, Ohio, Kentucky, and Tennessee.
The majority conclusion isn't so much about the validity of bans of gay marriage as about who controls the process by which they are or are not recognized. As Root previously suggested, it is a deferential decision. From the ruling (pdf):
This case ultimately presents two ways to think about change. One is whether the Supreme Court will constitutionalize a new definition of marriage to meet new policy views about the issue. The other is whether the Court will begin to undertake a different form of change—change in the way we as a country optimize the handling of efforts to address requests for new civil liberties.
If the Court takes the first approach, it may resolve the issue for good and give the plaintiffs and many others relief. But we will never know what might have been. If the Court takes the second approach, is it not possible that the traditional arbiters of change—the people— will meet today's challenge admirably and settle the issue in a productive way? In just eleven years, nineteen States and a conspicuous District, accounting for nearly forty-five percent of the population, have exercised their sovereign powers to expand a definition of marriage that until recently was universally followed going back to the earliest days of human history. That is a difficult timeline to criticize as unworthy of further debate and voting. 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. 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.
That reference to the "heroes being judges and lawyers" sounds like a not-so-subtle shot at guys like Ted Olson and David Boies, who have certainly pursued lots of positive press for their role in fighting Proposition 8 in California, as well as judges who have made sure to have some nice quotable lines in their rulings striking down marriage recognition bans.
We now have split decisions, with the 6th Circuit decision running counter to several other circuit decisions. This will increase the likelihood that the Supreme Court will take up the issue. They had previously declined, but previously all the appeals courts were in agreement.
