Saturday, November 15, 2014

182.2 - Not Good News: Sixth Circuit, as expected, endorses discrimination against same-sex couples

Not Good News: Sixth Circuit, as expected, endorses discrimination against same-sex couples

Which, of course, immediately brings up the Not Good News.

On November 6 - the first week in November was a busy one on this front - on November 6 the 6th Circuit federal court upheld, approved, sanctioned, legal discrimination by the states of Kentucky, Michigan, Ohio, and Tennessee against same-sex couples wanting to get married or have their marriages from other states recognized.

The ruling by the three-judge panel was a split one, 2-1. Neither the ruling nor the split were unexpected; people have been predicting this is the way it would come down ever since the oral arguments.

What struck me, however, was not the decision itself, which again while disappointing was expected, but the utter vacuity of the logic of the ruling. Essentially every argument the majority offered to approve of bans on same-sex marriage could have been - and in fact, usually were - offered in defense of bans on interracial marriage just a few decades ago.

For example, during oral arguments, Judge Jeffrey Sutton said "I would have thought the best way to get respect and dignity is through the democratic process." Writing the majority opinion, Sutton seconded his own words, writing that it is up to legislators, not judges, to decide whether to preserve the "traditional" definition for marriage, with the definition of "traditional" having included "of the same race" in numerous states in this country well into my lifetime. Put another way, Sutton is saying that states get to define what is a marriage and, apparently, human rights are subject to majority approval. It would appear - I don't see how it could be argued otherwise -  that Sutton thinks that Loving v. Virginia, the landmark Supreme Court ruling in 1967 that struck down bans on interracial marriage, was decided wrongly.

What's more, the decision here found what it considered a rational basis for the state bans: establishing ground rules "to create and maintain stable relationships within which children may flourish." What, so same-sex couples are unfit parents? Is he seriously trying to argue that? Oh, and by the way, that was also an argument raised against interracial marriage: Think of the children! Think of the problems and difficulties the children of such a marriage will have!

Now, it's true, the court said, that marriage has also come to be viewed as a way to solemnize relationships characterized by love and commitment. "Gay couples, no less than straight couples, are capable of such relationships," that majority declared. Grand of them to acknowledge that, although it would have been better if they hadn't immediately followed that up by saying, in effect, "yeah, big deal, so what, you still can't get married."

The majority even threw in the slippery-slope argument: If it's unconstitutional to restrict marriage to one-man-one-woman, "it must be constitutionally irrational to stand by the monogamous definition of marriage." I'm surprised they didn't raise the specter of people marrying farm animals.

In fact, the opinion was so vacuous and offered so few cohesive arguments and nothing whatsoever new, that the dissenting judge, Martha Craig Daugherty, suggested that moving the case to the Supreme Court may have been the goal of Sutton and Judge Deborah Cook in their ruling.

"Because the correct result is so obvious," Daugherty wrote, "one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split."

The point here being that this decision creates a split among the circuit courts, with the 4th, 7th, 9th, and 10th Circuits knocking down bans on marriage equality and the 6th now endorsing them. That sharply increases the chances that the Supreme Court will step in to make a final ruling. The question is when: An appeal would have to be ready before mid-January for there to be a chance for the Supreme Court to hear the case this session, which ends in June. Otherwise, it would be pushed back to the following term and so probably not decided until June 2016.

It's true, as it's said, that justice delayed is justice denied. Even so, that doesn't change the fact that, as I keep saying, justice is coming.

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