Yesterday the US Sixth Circuit Court of Appeals handed down its verdict on the six same-sex marriage cases from the four states in its jurisdiction (Ohio, Kentucky, Michigan, and Tennessee). District judges had in each case ruled that the bans on such marriages in each of those states was unconstitutional and the three-judge panel looked at all the cases together. The panel ruled 2-1 to reverse the lower courts and uphold the bans, meaning that same-sex marriages cannot proceed in these four states. The majority opinion is, frankly, appalling. I do not say this simply because I disagree with the conclusion but for reasons that I give below.

The main argument they used was very simple, and depended on a fairly obscure prior US Supreme Court ruling that said that marriage was not a federal issue and thus federal courts had no role to play. That case arose in the 1970s when a Methodist minister carried out a marriage ceremony for two men in Minnesota. The couple then applied for a marriage license that was turned down. They sued but their appeal was rejected by the Minnesota Supreme Court in 1971. The couple then appealed to the US Supreme Court claiming that their rights under the Due Process and Equal Protection clauses of the Fourteenth Amendment had been violated. In 1972 the US Supreme Court in Baker v. Nelson rejected their appeal in a terse one-sentence order that this was not an issue for the federal courts to address. The opinion said in its entirety: “Appeal from Sup. Ct. Minn. dismissed for want of substantial federal question.”

Since then of course there have been several cases in the last few years in which the Supreme Court had opportunities to reinforce that sentiment but chose not to do so. These were the Proposition 8 case from California, the DOMA case, and the three other Appeals Courts decisions striking down same-sex marriage bans that the Supreme Court had left in place. This left most observers feeling that the 1972 Baker v. Nelson precedent no longer held. But the Sixth Circuit said that since the Supreme Court had not explicitly repudiated that opinion, it still remained the binding precedent.

But the two judges of the Appeals Court seemed to be dissatisfied with ruling on the basis of what could be seen as somewhat of a technicality. And this is where their opinion starts to get weird.

First, they said that the state had a rational basis for fostering procreation by giving benefits to opposite sex couples that they denied to same-sex ones.

What we are left with is this: By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring. That does not convict the States of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring. That explanation, still relevant today, suffices to allow the States to retain authority over an issue they have regulated from the beginning.

They then came up with the slippery-slope argument where they said that opening the door to same-sex marriage would mean that one had to allow polygamy and polyandry too.

If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage.

At least they didn’t go full Santorum and argue that bestiality would also then be on the cards. But they seemed blind to the point that discriminating on the basis of gender is a violation of equal protection laws in a way that restricting marriage to just two people is not.

The opinion then got even weirder as they embarked on a meandering treatise about how best such major social issues should be resolved and said that it would be better for the plaintiffs and the nation if they pursued change through the political process rather than through the courts.

Yes, we cannot deny thinking the plaintiffs deserve better—earned victories through initiatives and legislation and the greater acceptance that comes with them. But maybe the American people too deserve better—not just in the sense of having a say through representatives in the legislature rather than through representatives in the courts, but also in the sense of having to come face to face with the issue. Rights need not be countermajoritarian to count. See, e.g., Civil Rights Act of 1964, Pub. L. No. 88352, 78 Stat. 241. Isn’t the goal to create a culture in which a majority of citizens dignify and respect the rights of minority groups through majoritarian laws rather than through decisions issued by a majority of Supreme Court Justices? It is dangerous and demeaning to the citizenry to assume that we, and only we, can fairly understand the arguments for and against gay marriage.
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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.

But it is not the role of the courts to suggest grand schemes to resolve social issues and who should play heroic roles and how they should do so. The role of the court is to deal with the concrete issues that real people have brought before it and to ensure that they are treated fairly under the law.

Justice Martha Craig Daughtrey was scathing in her dissent, picking apart the majority opinion with a scalpel-like precision dripping with sarcasm.

The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment. Instead, the majority sets up a false premise—that the question before us is “who should decide?”—and leads us through a largely irrelevant discourse on democracy and federalism. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it. Because I reject the majority’s resolution of these questions based on its invocation of vox populi and its reverence for “proceeding with caution” (otherwise known as the “wait and see” approach), I dissent.

In the main, the majority treats both the issues and the litigants here as mere abstractions. Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win “the hearts and minds” of Michigan, Ohio, Kentucky, and Tennessee voters to their cause. But these plaintiffs are not political zealots trying to push reform on their fellow citizens; they are committed same-sex couples, many of them heading up de facto families, who want to achieve equal status—de jure status, if you will—with their married neighbors, friends, and coworkers, to be accepted as contributing members of their social and religious communities, and to be welcomed as fully legitimate parents at their children’s schools. They seek to do this by virtue of exercising a civil right that most of us take for granted—the right to marry.

So what now? One option is for the plaintiffs to ask for a review of this opinion by the full bench of 16 judges of the Sixth Circuit which, if granted, would require fresh oral arguments and take this case well into the next year. If the full bench reverses this opinion, then there would again be unanimity by the Appeals Courts. If they uphold the verdict, then there would be a split among the Appeals Courts verdicts, making the issue ripe for Supreme Court review.

It also depends on what the plaintiffs choose to do, whether to ask for a full review or go straight to the Supreme Court. Since all six plaintiffs can make the decision independently, and at least one has indicated that they will go directly to the Supreme Court and not ask for a full bench review, there is a chance that this case will be heard by the Supreme Court in the current session, sometime next year. Lyle Denniston has more on the options that can play out.