As you know dear readers, SCOTUS has been avoiding the issue of marriage equality for the simple reason that there was no conflict in the lower courts for them to resolve – all were in agreement. Justice Ginsburg caused quite a stir back in September when she said the court was in 'no hurry' to address the issue, even as she added that a conflict at the appellate level would create some urgency.
Well, now we have some urgency.
In a major blow to the gay-rights movement, a federal appeals court today denied same-sex couples the right to marry in four states -- including Michigan -- concluding that voters should decide whether gay marriage is a good idea or not.
"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," the 6th Circuit U.S. Court of Appeals wrote in its 64-page ruling. "Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike ... resolve a new social issue in a fair-minded way."
In a 2-1 decision, the 6th Circuit upheld same-sex marriage bans in Michigan, Ohio, Kentucky and Tennessee. The court issued its highly anticipated decision three months after hearing same-sex marriage cases from all four states, where federal judges had previously struck down bans on constitutional grounds.
The 6th Circuit overturned those decisions, concluding judges shouldn't be deciding whether gays and lesbians should marry or not.
"Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel .... Our judicial commissions did not come with such a 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 32 million citizens who live within the four states of the 6th Circuit," the court wrote.
The panel also had this to say about the definition of marriage: " ... for better, for worse ... 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."
While the ruling came as a huge blow to the two Michigan plaintiffs who challenged Michigan's ban on gay marriage, they remain adamant that they will win the right to marry before the U.S. Supreme Court.
"We're going straight to the Supreme Court," said Dana Nessel, lead attorney for Hazel Park nurses April DeBoer and Jayne Rowse. "We feel absolutely confident that the U.S. Supreme Court will accept one of the cases out of the 6th Circuit, most likely Michigan's or Kentucky's."
The U.S. Supreme Court has not yet weighed in on the issue of gay marriage. Now that there's a split in the federal appeals courts on the issue -- the gay-marriage movement has won 30-plus cases in the last year -- the Supreme Court will likely take up the issue, she said.
"We feel the Supreme Court was waiting for this," Nessell said. "We're looking forward to this issue being resolved once and for all for in this country, and I have every confidence that by the end of June 2015, there will be marriage equality in all 50 states."
Michigan Attorney General Bill Schuette, who has long vowed to uphold the will of the Michigan voters in preserving traditional marriage, issued a brief statement on the 6th Circuit ruling.
"As I have stated repeatedly, the U.S. Supreme Court will have the final word on this issue. The sooner they rule, the better, for Michigan and the country," Schuette wrote.
Sorry if this was a little late getting to the presses. Don't these courts know when I'm in a meeting? (You know what I mean by 'meeting' don't you?)
Update: The decent is particularly fabulous.
More than 20 years ago, when I took my oath of office to serve as a judge on the United States Court of Appeals for the Sixth Circuit, I solemnly swore to “administer justice without respect to persons,” to “do equal right to the poor and to the rich,” and to “faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States.” 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.You can read the whole decision here.