The right for same sex couples to marry

2 bridesAs provided in the American Bar Association Journal, for the first time, a federal appeals court has refused to recognize a constitution-based right of same-sex couples to marry, creating a circuit split and setting the issue up for review by the U.S. Supreme Court.  In a 2 to 1 decision on Thursday, the Cincinnati-based 6th U.S. Circuit Court of Appeals reversed federal district court judges in Kentucky, Michigan, Ohio and Tennessee who had struck bans on same-sex marriage and said the issue is most appropriately decided in the political arena.

In a 22-page dissent, Judge Martha Craig Daughtrey said the court had not only the authority but the obligation to recognize same-sex marriage.  “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,” she wrote.

Today’s ruling for the first time creates a circuit split on the issue; previously, the 4th, 7th, 9th and 10th circuits had all upheld a constitutional right to same-sex marriage.  Although the U.S. Supreme Court last month refused to grant a hearing concerning earlier appellate court rulings, the issue is now likely headed to the U.S. Supreme Court.

The Circuit Court’s opinion stated that “This is a case about change – and how best to handle it under the United States Constitution.  From the vantage point of 2014, it would now seem, the question is not whether American law fill allow gay couples to marry; it is when and how that will happen.   That would not have seemed likely as recently as a dozen years ago.  For better, for worse, or for more of the same, marriage has long been a social institution defined by relationships between men and women.  So long defined, the tradition is measured in millennia, not centuries or decades.  So widely shared, the tradition until recently had been adopted by all governments and major religions of the world”.

The opinion went on to say, “But things change, sometimes quickly.  Since 2003 nineteen States and the District of Columbia have expanded the definition of marriage to include gay couples, some through state legislation, some through initiatives of the people, some through state court decisions, and some through the actions of state governors and attorneys general who opted not to appeal adverse court decisions.  Nor does this momentum show any signs of slowing.  Twelve of the nineteen States that now recognize gay marriage did so in the last couple of years.  On top of that, four federal courts of appeals have compelled several other States to permit same-sex marriages under the Fourteenth Amendment.”

The opinion further stated that, Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea.  Our judicial commissions did not come with such sweeping grant of authority, one that would allow just three of us – just two of us in truth – to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee.  What we have authority to decide instead is a legal question: Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?”

Leave a Reply