Marriage equality saw its first major setback in a movement that’s seen bans overturned in many states over the last 16 months, even red states. Now, USA Today is reporting that the 6th Circuit Court of Appeals has upheld same-sex marriage bans in Michigan, Ohio, Kentucky and Tennessee. This sets the stage for a Supreme Court review, now that the circuits are split in their opinions.
Missouri’s ban on marriage equality was the most recent to go. Attorney General Chris Koster immediately appealed the decision, according to an article dated just yesterday on the Associated Press website. He would like the Missouri Supreme Court to review that decision, saying that a challenge to their constitution must be presented and challenged at that level.
The 6th Circuit’s ruling may throw an awful lot of decisions from other courts into doubt. No doubt many advocates of so-called “traditional marriage” will claim that this proves the people want marriage to be only between a man and a woman. It does overturn several district court decisions calling marriage equality bans unconstitutional.
Marriage equality will face new challenges from Congress now, too.
With a Republican majority in Congress and new Teapublicans in office, we should expect to see a flurry of activity aimed at “protecting” the status of marriage as some sort of hallowed institution that only straight couples should be able to enjoy. Also, with many states electing Republican governors, it wouldn’t be at all surprising to see more states trying to uphold “traditional family values,” and to see renewed attacks on the LGBTQ community for daring to ask for equality.
Marriage equality shouldn’t be up to “the people,” for the following reasons:
Judge Jeffrey Sutton’s 47-page opinion slams proponents of marriage equality. USAToday quoted part of it, which says:
“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.”
It would be quite interesting to see if he feels this way about interracial marriage, too, since that was an issue decided in the courts. Part of the reason for the courts’ existence is to prevent the majority from trampling the rights of the minority in the manner Sutton suggests should be allowed.
The lone dissenter on the 3-judge panel, Judge Martha Craig Daughtrey, said:
“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.” [emphasis mine]
She makes an excellent point. A quote from the film “The Patriot” comes to mind here:
“Would you tell me, please, Mr. Howard, why should I trade one tyrant three thousand miles away for three thousand tyrants one mile away? An elected legislature can trample a man’s rights as easily as a king can.”
And that is the stark truth of democracy. Sometimes, the majority can’t rule, because what the majority wants violates someone else’s rights. Marriage equality should never have been put up for votes. We do not vote on rights.