The Sixth Circuit is now the first federal circuit court of appeals to rule against same-sex marriage, likely setting the stage for what Justice Ginsburg predicted: The necessity for the Supreme Court to take up the issue instead of letting it fall into shadows, as it did last month when it declined to hear same-sex marriage cases from three other circuits.
By a 2-1 vote, a panel of the Sixth Circuit said that the Fourteenth Amendment to the Constitution does allow states to define marriage as being between a man and a woman.
Please, Think of the Children!
After a two-page preamble about the need for "process and structure," and a recitation of the facts, the court dives right into Baker v. Nelson, the 1971 summary dismissal of a same-sex marriage case from Minnesota for lack of "a substantial federal question." On this basis alone, the court concludes, it can't make a decision. The majority discounts U.S. v. Windsor and the court's most recent denial of cert. to five same-sex marriage cases as evidence that "doctrinal developments" post-Baker allow the Sixth Circuit to effectively ignore the Supreme Court's one-line dismissal from 43 years ago.
But getting into the merits anyway, the court believes laws prohibiting same-sex marriage pass rational basis review. Why? Because defining marriage as between a man and a woman is good for children -- in spite of the fact that every other federal circuit has discounted this as a possible motivation, given that states regulate marriage in many ways and in situations that have little to do with procreation.
Here Are Some Other Reasons
Thankfully, rational basis review is a forgiving mistress, so if a court doesn't buy the state's asserted reasons for enacting a law, it can always make some up. The majority did that too, finding that states could, for example, limit the definition of marriage "to wait and see before changing a norm that our society (like all others) has accepted for centuries."
And if you think marriage laws are capricious, the majority throws up its hands and says, "Yup. That's life! Whatchagonnado?"
The Court Won't Create a New Right
The court also said that the laws weren't motivated animus; they were motivated by "the fear that the courts would seize control over an issue that people of good faith care deeply about." Nor did the court believe that a lack of political power merited bumping this up to heightened review; it wouldn't "[infer] from history that prejudice against gays led to the traditional definition of marriage in the same way that we can infer from history that prejudice against African Americans led to laws against miscegenation." Really?
And, finally, addressing the elephant in the room, the majority distinguishes this situation from Loving v. Virginia, which the court said wasn't about changing the definition of marriage but rather about the races of the applicants for a marriage license. Consequently, the "fundamental right to marry," in the majority's view, is still a right of opposite-sex marriage, not same-sex marriage.
Dissent: 'A Largely Irrelevant Discourse on Democracy and Federalism'
There's actually more to the majority opinion in DeBoer, but we still need to talk about Judge Martha Daughtrey's dissent. Daughtrey disagrees both with the majority's factual premises and the conclusions. A bevy of evidence provided at trial, she said, showed that the state's justifications had no basis in reality: "The record is rich with evidence that, as a pragmatic matter, completely refutes the state's effort to defend the ban against same-sex marriage that is inherent in the marriage amendment."
She also criticized the majority's reliance on Baker, a "legal 'dead letter'" that "lacks only a stake through its heart." She found it odd to claim that Baker was still controlling even though the Supreme Court never once mentioned it in Romer, Lawrence, Windsor, or even last month's cert denials.
Daughtrey also took a dim view of the notion that adhering to the "original" intent of the Fourteenth Amendment would be fruitful; in the end, she said, it probably wouldn't, in light of school desegregation and striking down anti-miscegenation laws, something the Amendment's framers never would have dreamed of. She also thought little of the idea that letting the people decide was sufficient, noting that most states allow same-sex marriage because of judicial, not legislative, involvement.
What's next? A petition for rehearing en banc, and then likely the Supreme Court, which, if the en banc decision affirms this one, will be forced to take up the case.