A three-judge appellate panel upheld Michigan's 2004 constitutional ban on same-sex marriage today, almost certainly setting the stage for the U.S. Supreme Court to consider the issue of marriage equality once and for all. Thirty-four states now allow same-sex marriages.
The Sixth Circuit Court of Appeals 36-page majority ruling, which upheld bans elsewhere in Ohio, Kentucky, and Tennessee, follows decisions by federal judges in each of those states to strike down similar bans. The two plaintiffs in Michigan's case, April DeBoer and Jayne Rowse, can appeal to the U.S. Supreme Court, which may now consider the issue, with circuit court districts elsewhere having overturned similar bans.
In the 2-1 ruling written by Judge Jeffrey Sutton, he writes: "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 will 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." Joining Sutton's opinion was Judge Deborah Cook.
In a statement following the ruling, Kary L. Moss, executive director of the American Civil Liberties Union of Michigan, said the core issue at hand is the "fundamental right of all couples" to enjoy the benefits and protections of having a legally-recognized marriage.
"Today's decision goes against not only that principle, but also goes against the clear tie of history and other appellate courts," he said. "Michigan is waiting to join states like Indiana, Wisconsin, Utah, Oklahoma, and Virginia where legally married gay and lesbian couples are not treated like second-class citizens by their own state."
The appellate court's decision to hear the case dates back to this past March, when U.S. District Judge Bernard Friedman overturned Michigan's ban, which voters approved in 2004 to define marriage as between one man and one woman. Initially, DeBoer and Rowse filed their lawsuit to challenge a state law that precluded them from legally adopting their three children. At Friedman's urging, the couple expanded the scope of their case to challenge Michigan's same-sex marriage ban outright.
Friedman didn't issue a stay on his ruling. The following day, more than 300 couples wed in four counties across the state, before the Sixth Circuit put a hold on Friedman's decision at the request of Michigan Attorney General Bill Schuette. The appellate court granted the stay until it heard the case.
In a rather tame statement issued after the Sixth Circuit's decision, Schuette said, “The U.S. Court of Appeals for the Sixth Circuit has ruled, and Michigan’s constitution remains in full effect. 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.”
So far, Schuette's office has spent at least $40,000 arguing the case.
Republican Gov. Rick Snyder didn't weigh in on the issue in a statement Thursday, other than to say he swore an oath to uphold Michigan's Constitution and "that oath is not a matter of personal preference.
Sutton's opinion rests on similar sentiments from the likes of Schuette and other proponents of "voter's rights" — as it pertains to issues like same-sex marriage.
He writes: "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."
In a scathing 21-page dissenting opinion, Judge Martha Daughtrey slams Sutton's take on the issue, saying he "wholly fails to grapple" with the actual question at hand.
"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," Daughtrey writes.
Portions of Daughtrey's complete repudiation of Sutton's opinion are worth highlighting at length:
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 those plaintiffs are not political zealots trying to push reform on their fellow citizens; they are committed to 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 rights that most of us take for granted — the right to marry.
And while there are those who believe voters should be left to decide whether or not discrimination can be legally enshrined into a state's Constitution, Daughtrey makes no bones about her feelings on that particular opinion: It's flat out wrong.
"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," she writes.
"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 full opinion below.